Thursday, July 24, 2008

Krannawitter on Lincoln & Prerogative

This is the third part of my comments on Thomas Krannawitter's Vindicating Lincoln.

Shortly after the firing on Fort Sumter, Lincoln initiated military responses without a declaration of war from Congress. He called for 75,000 military volunteers, he expanded the Army and Navy, he withdrew money from the federal treasury without congressional authorization, he ordered a blockade of Southern ports, and he authorized his generals in the field to suspend the writ of habeas corpus. This was the first and only time in American history that the writ of habeas corpus has been suspended. In effect, this meant a suspension of all individual rights, because it meant that military authorities could detain individuals in custody without specifying charges against them. In some cases, this was used against public speakers and newspaper editors who were criticizing Lincoln's policies. According to the libertarian and paleoconservative critics of Lincoln, this shows us clearly that Lincoln was a tyrant.

By contrast, progressive scholars defended Lincoln's exercise of power as benevolent dictatorship. Krannawitter quotes political scientist John Burgess as praising Lincoln as a "prototype of twentieth-century presidential government, ruling through rhetorical leadership of public opinion rather than an adherence to the text and forms of the Constitution" (318).

Krannawitter wants to defend Lincoln against the libertarian and paleoconservative charge of tyranny. But he wants to do this without embracing the progressive idea of "presidential government" outside the Constitution.

Krannawitter's rhetorical strategy is to employ Benjamin Kleinerman's argument that Lincoln properly exercised the "executive prerogative" defended by John Locke. But in doing this, Krannawitter never explains clearly how such Lockean prerogative can be compatible with American constitutionalism. In the British tradition of the divine right of kings, prerogative was at the core of the kingly power to act with unlimited discretion outside the rule of law. Challenging prerogative was therefore at the center of the British tradition of republicanism. It was important for the American constitutional framers that the American president should not have any prerogative powers allowing him to step outside the Constitution. On this point, they disagreed with Locke. In 1793, James Madison complained that Locke's "chapter on prerogative shows how much the reason of the philosopher was clouded by the royalism of the Englishman."

In adopting Kleinerman's argument, Krannawitter fails to clearly lay out the possible relationships between emergency powers and the Constitution. There are three possibilities. Emergency powers could be totally outside the Constitution, so that a President in times of emergency steps outside the constitutional framework to do whatever he judges best for the country. Or emergency powers could be inside and outside the Constitution, so that a President might invoke certain provisions inside the Constitution--like his oath of office, for example--as allowing him to step outside the Constitution in times of emergency. Or emergency powers could be totally inside the Constitution, so that the President and other officers of government have only those emergency powers specified in the Constitution itself. (Here I am drawing on some arguments that I have elaborated elsewhere, as in my chapter on Locke in Political Questions.)

Following Kleinerman, Krannawitter seems to take either the outside or the inside/outside position. Against them, I would argue for the totally inside position as the only position compatible with American constitutionalism. And, with the possible exception of one short passage in his Message to Congress of July 4, 1861, I think Lincoln followed the inside position. That is to say, Lincoln generally argued that he was able to meet the emergency of the Civil War by exercising powers specified in the Constitution so that it was not necessary for him to step outside the Constitution. In fact, Lincoln expressly denied that he was exercising "an arbitrary personal prerogative" (quoted by Krannawitter at p. 328).

In The Federalist, Hamilton and Madison argued that the Constitution did not contain, and should not contain, "parchment provisions" contrary to "public necessity." Rather, the national government should be given all the powers necessary for meeting every contingency, so that it would never be necessary in an emergency for officers of government to act outside the Constitution. To do otherwise--to force officers in times of emergency to step outside the Constitution--would set dangerous precedents of extraconstitutional action that would destroy constitutional government.

Lincoln's agreement with this stance is clear in his argument that suspension of the writ of habeas corpus is a clear example of an emergency power specified in the Constitution that makes it unnecessary to step outside the Constitution in an emergency like the Civil War. In Article I, sec. 9, the Constitution declares that "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." This means that the President has the constitutional power to suspend the writ in an emergency if he can show that there is a rebellion or invasion that requires suspension for the public safety. Although this provision is found in Article I, which is predominantly the legislative article of the Constitution, the provision does not specify that this suspension is exclusively a legislative power. Moreover, at the Constitutional Convention of 1787, this provision originally was written with the specification that suspension would be "by the legislature." But this phrase was dropped later, leaving it open as to whom was to do the suspension.

Executive prerogative by Locke's definition is the power "to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it." Progressive scholars like Arthur Schlesinger, Jr., in The Imperial Presidency have argued that American presidents have Lockean prerogative, which allows them to step outside the Constitution in time of emergency.

Like Kleinerman, Krannawitter adopts the Schlesinger position. It is hard to see how this is consistent with American constitutionalism. Agreeing with Kleinerman, Krannawitter suggests "that it is better for the president to act without law and, in so doing, to explain and defend his actions by speaking openly to the people about the temporary necessities that require such actions" (333). Isn't this exactly what Burgess proposed--"twentieth-century presidential government, ruling through rhetorical leadership of public opinion rather than an adherence to the text and forms of the Constitution"? But doesn't this contradict Krannawitter's earlier claim that he rejects presidential government through rhetorical leadership as a progressivist distortion of Lincoln?

Isn't it contrary to American constitutionalism and the rule of law to suggest, as Krannawitter does, that "it might be less important to ask whether Lincoln's actions were legal or constitutional, and more important to ask if they were necessary to protect the public good" (325)?

The contemporary application of Krannawitter's promotion of presidential prerogative power is suggested by his embrace of John Yoo's defense of Bush's imperial presidency. I see here a disturbing tendency that Krannawitter shares with many of the Straussians towards elevating presidential leadership over the rule of law. This is evident, for example, in Harvey Mansfield's defense of George Bush's "one-man rule" and "imperial ambition" as an expression of the rule of the wise man. My response to Mansfield can be found here.


Anonymous said...

While I haven't yet read Krannawitter's book, it seems strange if he uses the Lincoln as outside the Constitution to defend the John Yoo position. After all, the Yoo position follows, I would think, more from your claim that presidential discretion is entirely inside the Constitution. This is why he insists Congress is constitutionally precluded from legislating in the realm of executive discretion. Yoo is able, unproblematically, to elevate presidential leadership over the rule of law because he manages to place presidential leadership entirely within the rule of law, precisely by using the kind of inside the Constitution argument you're here defending. I would not equate Yoo's position with Mansfield's in this. His Weekly Standard article, "Who You Going to Call" from a couple of years back is much more subtle than Yoo's claims.

Benjamin A. Kleinerman
Michigan State University

Anonymous said...

Professor Arnhart:

I should also say that I just came across your blog and have very much enjoyed what I read so far. Also, I should thank you for the "God-Like Prince" paper you wrote years ago. It has stood the test of time as one of the seminal pieces on presidential prerogative and I profited from it tremendously in my own work.


One final quibble: my position is defintely not the same as Schlesinger's or Jefferson's for that matter. I agree with you that this position is dangerous for the very sorts of Federalist reasons that you cite. But, the argument of John Yoo and the Bush administration also shows why the "Hamiltonian" position can be dangerous. That's why I think Lincoln's position is different than and superior to both.

Larry Arnhart said...


Thanks for your generous comments.

We seem to agree on Lincoln's handling of emergency powers as superior to the alternatives. It took me a while to reach the conclusion that Lincoln saw his actions as entirely inside the boundaries of the Constitution.

The only problem for this view is that some of what he did in the spring of 1861--such as taking money from the federal treasury without congressional authorization--seems clearly contrary to explicit provisions of the Constitution. He could have called Congress into session earlier than July 4th to get congressional authorization for his actions.

Anonymous said...

What about his 1864 letter to Albert G. Hodges? That doesn't seem to reflect a wholly inside conception of his actions, does it?
By the way, this means that your view of Lincoln has changed some since your article, right? Do you have any scholarship laying this new view out more fully?

Larry Arnhart said...

The letter to A. G. Hodges--read in its entirety--suggests that Lincoln is restating what he had said elsewhere about the Emancipation Proclamation as a fully constitutional act of the Commander in Chief in time of war. To justify it in this way, as Lincoln indicates, means that it had to be judged as a war measure. As such, it could not be a permanent and complete abolition of slavery. Because Lincoln had no constitutional power to abolish slavery completely. For that, the 13th Amendment was necessary.

The Arthur Schlesinger position would say that in time of emergency, the President can step outside the Constitution and act with purely discretionary power for the public good as he judges it. In effect, the President becomes a temporary dictator.

In the Civil War, Lincoln's critics accused him of becoming a dictator exercising "an arbitrary personal prerogative." Lincoln repeatedly denied this charge by arguing that his every exercise of power was within the Constitution.

This is made clear, I think, in various places in the COLLECTED WRITINGS, 4:531-32, 6:262-69, 6:302-303, 6:428-29, 8:52, 8:100-101.

Anonymous said...

I had in mind the following passage from the letter: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.” To me, this indicates that he does not simply understand his actions as inside the Constitution. They become lawful by becoming indispensable to the preseration of the nation. They are not automatically so. I agree that Lincoln did not exercise an "arbitrary personal prerogative." It's Schlesinger's or Rossiter's "temporary dicatorship" model that I try to critique in the article that Krannawitter must cite. Unlike that model, Lincoln submits his actions to be judged by what was necessary to preserve the Constitution from which he temporarily departs. In this way, his actions become, rather than simply are, constituitonal.

Larry Arnhart said...

As you know, there were rumors that Lincoln was going to cancel the presidential election of 1864, or that he would refuse to step down if defeated. He strongly rejected such thoughts and submitted himself to the election.

Are you suggesting that Lincoln could have cancelled the election of 1864 if he thought it necessary for the preservation of the nation? Didn't Lincoln say that doing that would have been the end of constitutional government?

Or, to consider another possibility, could Lincoln have suspended the Congress and the Supreme Court for the duration of the war, with the claim that this was necessary for preserving the country? This would have been a "temporary" departure from the Constitution. But I see nothing in Lincoln's writing that suggests he would even consider this. Why not? Isn't it because whatever Lincoln did, he had to see it as totally within the Constitution, and thus within the normal structure of constitutional authority?

Anonymous said...

Yes, I agree. There must be bounds on the types of departures one can make from the Constitution in the name of its preservation. Cancelling the election or closing Congress and the Supreme Court for the duration of the war might have "preserved the nation" but these actions would not have preserved a constitutional nation. That being said, so much of Lincoln's rhetoric emphasizes the extraordinary nature of his actions (think his drug metaphor in the Letter to Erastus Corning) that I still it's not quite right to say that he did not see himself as departing in some way from the Constitution. The important point is (and this is the point on which I think we agree): he does so in such a way as to preserve the Constitution in the aftermath of his action. Again, I would only say that if were to have acted as though his actions were simply the ordinary course of business, then he also would have done damage to the Constitution. And this is where I think Lincoln would disagree vehemently with the Yoo argument.

Larry Arnhart said...

But if you're saying that Lincoln thought he could temporarily suspend the Constitution during an emergency, then how can there be "bounds on the types of departures one can make from the Constitution in the name of its preservation"?

If there are such "bounds," what are they? Does this mean there are some parts of the Constitution that can be properly suspended, but others that cannot be?

Does this mean that--contrary to THE FEDERALIST--Lincoln thought the Constitution had "parchment barriers" that had to be breached when they were contrary to "public necessity"?

If the Constitution was designed to be suspended in emergencies, why does it contain emergency provisions like the suspension of the writ of habeas corpus?

Are you saying that the President would never under any circumstances have the authority to suspend Congress, suspend the Supreme Court, or suspend presidential elections? If so, doesn't this show a move towards my position--that emergency powers must be found inside the Constitution and thus be consistent with preserving the entire constitutional structure of government?

Anonymous said...

I haven't said that the Constitution as a whole must be suspended. Instead, I'm following Lincoln's logic in his limb metaphor. Sometimes, the life of a body requires the cutting off of a limb. The necessities of the life limit how much you cut off. One wouldn't cut off two limbs if one only needed to cut off one. The bounds come from the necessity itself. This isn't a clean legal formula but the problem of prerogative defies clean legal formulas. As your colleague, Ross Corbett, shows so well in his book on Locke: the necessity of prerogative requires, at the same time, a vigilant citizenry who will judge that necessity. We must accept that legal formulas will not stand in for tough political judgments. The suspension clause surely indicates that the Constitution does contemplate emergencies; but, as you have already pointed out, there are other much more constitutionally questionable actions taken by Lincoln that cannot simply be justified by the suspension clause. I would say, with Lincoln, that the "take care" clause ultimately gives Lincoln the constitutional duty to undertake them. But the things he duty under that duty are not automatically constituitonal, especially if, while doing them, he violates the Constitution. Enlarging the Army and the Navy before Congress is in session is not constitutional. The necessity of the situation, however, might make it so. Lincoln is careful about precedents that follow from his actions. He does not simply assert that all of this follows from his ordinary constitutional power.

Larry Arnhart said...

You're taking the inside/outside position on the constitutionality of prerogative--the position that the president has powers inside the Constitution (his oath of office, for example) that allow him to go outside the Constitution.

I take the inside position--the position that American constitutionalism dictates that whatever emergency powers the President has must be found inside the Constitution. To say that the President must go outside the Constitution in times of emergency is consistent with Locke but inconsistent with American constitutionalism.

Lincoln's expansion of the Army and Navy without congressional authorization was unconstitutional because it violated the specific powers of Congress. I don't agree with you that "the necessity of the situation" dictated this. Lincoln could have called Congress into special session within days--a power specified in the Constitution--to authorize the military expansion.

In the spring of 1861, Lincoln acted on the inside/outside position. I think that was a big mistake because it subverted the fundamental principles of American constitionalism.

After July 4, 1861, however, Lincoln adhered to the totally inside position, arguing that everything he did was an exercise of specific constitutional powers. That is the better position because it does not subvert the Constitution.

Ross Corbett's book on Locke is a good interpretation of Locke, but his defense of Lockean prerogative fails to consider how--as James Madison said--Locke's "chapter on prerogative shows how much the reason of the philosopher was clouded by the royalism of the Englishman."