Saturday, March 12, 2016

Did Abraham Lincoln Claim the Lockean Prerogative Powers of a Dictator?

During the Civil War, Abraham Lincoln was denounced as a dictator because many of his war measures seemed to be clearly unconstitutional violations of individual rights.  His suspension of the writ of habeas corpus, for example, was effectively a suspension of all individual rights, because military commanders could arrest and detain people without due process of law.  This was the only time in American history that the writ of habeas corpus was suspended.  Lincoln defended his actions by arguing that, in times of war, the president sometimes has to infringe on individual liberty in doing whatever is necessary to preserve the country. 

Therefore, Lincoln explained, we must confront a difficult question: "Must a government of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"

Gideon Welles, the Secretary of the Navy under Lincoln, predicted to his wife that the "government will, doubtless, be stronger after the conflict is over than it ever has been, and there will be less liberty."  Lincoln's critics have complained that this was a correct prediction.  Historian James Randall observed that while Lincoln acted as a dictator, at least he was a "benevolent dictator," although one might wonder whether even a benevolent dictatorship sets a bad precedent for later presidents. 

Richard Nixon cited Lincoln in claiming that "if the President does it, that makes it legal."  George W. Bush's legal advisors (such a John Yoo) invoked Lincoln's precedents to justify Bush's extraordinary powers in the "war on terrorism" after the 9/11 attack, even to the point of torturing and killing people without due process of law.  Although Barack Obama criticized this in his first campaign for the presidency, Obama as president has continued the Bush policy of extraordinary presidential powers.  We can expect that the next president--Donald Trump or Hillary Clinton--will carry on this tradition.  And in the case of Trump, this presumably will include presidential authorization for attacks on Muslims, perhaps comparable to the detention of Japanese Americans in World War Two, which Trump has endorsed.

It seems that these presidents are following the example of Lincoln in claiming "executive prerogative," which John Locke defined as the power "to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it" (Second Treatise, sec. 160).  Locke's critics have argued, however, that in allowing the executive to act outside and even against the laws, he is supporting the arbitrary and absolute power of a monarch that he generally rejects.  Particularly in a constitutional republic like the United States, one would think that no governmental official should have the power to act outside or against the Constitution.  That's why, in 1793, James Madison--arguing against Alexander Hamilton's broad interpretation of presidential powers--complained that Locke's "chapter on prerogative shows how much the reason of the philosopher was clouded by the royalism of the Englishman."

When I first wrote about this in an article in the Presidential Studies Quarterly in 1979, I criticized Lincoln for claiming Lockean prerogative and thus subverting constitutional government.  But later I changed my mind, at least partially, because I saw that while Lincoln had claimed prerogative power in his Message to a Special Session of Congress on July 4, 1861, he always argued in his later statements that he was acting fully within the Constitution, and thus was not claiming any power to step outside the Constitution.  Oddly, in all of the writing since 1979 on Lincoln and Lockean prerogative, no one, as far as I know, has agreed with me about this.

In considering the constitutional status of prerogative, there are three possibilities.  Prerogative could be totally outside the Constitution, or totally inside the Constitution, or both inside and outside.  I argue that the best position is to see prerogative as inside the Constitution, so that there are no emergency powers except those specified by the Constitution.  This is the position that Lincoln took after July 4, 1861.  But in that July 4th message, Lincoln suggested that prerogative was inside and outside the Constitution, in that certain provisions inside the Constitution allowed him to step outside the constitutional framework.  Other people have argued that prerogative is totally outside the Constitution, in that in times of war or emergency, the president must have the power to do whatever is necessary to meet the crisis, while the Constitution is temporarily suspended, until the crisis is over.

The firing on Fort Sumter occurred on April 12th, 1861.  Because Congress was in recess at the time, Lincoln issued a call on April 15th for a special session of Congress.  He set the date for July 4th, and thus secured for himself a period of almost three months in which he took complete charge of the war effort without any congressional authorization.  Although some of his actions were clearly legal, some seemed to be unconstitutional.  His declaration of a naval blockade of the South was legally dubious, because that seemed to require a congressional declaration of war.  His suspension of the writ of habeas corpus was also questionable, because such a power seemed to many people to belong to the Congress rather than the President, but the Constitution does not specify who can suspend the writ.  The most obviously unconstitutional actions were his expansion of the army and the navy and his unauthorized withdrawal of funds from the Treasury.  The Constitution provides specifically for Congress to have the exclusive power of enlarging the military forces and authorizing appropriations.

In his message to Congress of July 4th, Lincoln explained: "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."  He thus appeared to claim a Lockean prerogative power to act unconstitutionally in time of emergency and to appeal directly to public opinion as a source of power.

In explaining his suspension of the writ of habeas corpus, he claimed that it was his duty "to authorize the Commanding General, in proper cases, according to his discretion . . . to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety."

To provide constitutional support for taking such action, Lincoln cited three provisions of the Constitution.  In Article II, Section 3, it is said that the president "shall take Care that the Laws be faithfully executed." Lincoln argued that in order to insure that the whole of the laws would be executed in the South, he had to violate some laws to win the war.

Article II, Section 1, of the Constitution requires that the president take an oath that no one else takes--to "preserve, protect, and defend the Constitution of the United States." Lincoln inferred from this that the president has a special duty to do whatever is necessary to preserve the country, even if this requires violating the law.

Lincoln thus seemed to say that such provisions inside the Constitution allowed him to act outside the Constitution.

Isn't it strange to argue that the president has a constitutional duty to violate the Constitution?  Isn't it also hard to see what would prevent a president from abusing executive powers once he has stepped outside the Constitution?  Why couldn't a president in time of war or other emergency declare that the Congress, the courts, and elections are suspended for the duration of the emergency?

But in citing a third constitutional provision, Lincoln suggested that he was not acting outside the Constitution at all.  Article I, Section 9, provides: "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."  Lincoln claimed that by suspending the writ of habeas corpus he was simply exercising an emergency power specifically provided by the Constitution itself. 

We might infer from this, although Lincoln did not say so explicitly, that the framers of the Constitution wrote into the document emergency provisions so that it would never have to be set aside during times of crisis.   After all, The Federalist argued that the Constitution was written to provide all the powers necessary for handling any contingencies, so that there were no "parchment provisions" that would have to be violated in times of war or emergency.

Lincoln never violated the broad framework of the Constitution.  Although he delayed calling Congress into session, for example, he never questioned the right of the Congress to meet during the war and to judge his actions.  And in 1864, he ran for reelection, even though there was a strong possibility that he would lose, and a new Commander in Chief would appear while the war continued.  Lincoln allayed the widespread fear that he would cancel the election.

After his message of July 4, 1861, Lincoln consistently denied that he was claiming any powers to act outside the Constitution.  He explicitly denied that he was claiming any "arbitrary personal prerogative" (see the Library of America edition of Lincoln's writings, vol. 2, 269, 455, 467, 501, 585, 635-36, 641).  Lincoln thus suggested that the Constitution was written so carefully that it provided for all the powers necessary for meeting every emergency, so that there would never be any need for the president or anyone else to claim a Lockean prerogative power outside the Constitution.

I disagree, therefore, with those scholarly commentators (like Benjamin Kleinerman in The Discretionary President, Joe Fornieri in Abraham Lincoln, Philosopher Statesman, and Thomas Krannawitter in Vindicating Lincoln) who assume that Lincoln was claiming to have Lockean prerogative power.

If one reads the Constitution carefully, one can see that it contains many emergency powers, so that there is no necessity for stepping outside the Constitution during an emergency.  In Article I, Section 8, clause 15, the Congress is given the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  Thus, the Congress can provide for military force to handle the emergencies of insurrections and invasions, even when there is no war.

In Article I, Section 9, clause 2, the provision for suspending the writ of habeas corpus allows, as we have already seen, for suspending individual rights when in cases of rebellion or invasion, the public safety might require it.  The president can do this, but he must justify it by persuading us that there really is a rebellion or invasion, and that the public safety requires the suspension.  Except for Lincoln, no president has ever done this.  Or at least, no president has ever officially suspended the writ of habeas corpus.  At least informally, Presidents Bush and Obama have suspended the writ of habeas corpus for some people suspected of supporting terrorism.

In Article I, Section 10, clause 3, the States are prohibited from waging war "unless actually invaded, or in such imminent Danger as will not admit of delay."  Thus, even without a declaration of war from Congress, state governments can wage war to defend themselves against invasion or danger of invasion when there is no time for Congress to act.

In Article II, Section 3, the President is given the power to convene both Houses of Congress "on extraordinary Occasions," which allows the President to meet emergencies with the cooperation of Congress.

In Article IV, Section 4, it is said that the United States "shall protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."  Notice how carefully this is written to handle the contingencies of emergencies.  When domestic violence breaks out in a State, and the state legislature cannot be convened in time, the state's executive can ask the national government for help.

This last provision suggests a constitutional way to handle terrorism.  The 9/11 attacks were not acts of war requiring a "war on terrorism," as so many national leaders have claimed.  They were acts of "domestic violence."  The state legislature of New York or the Governor of New York could have called for military intervention by the United States to protect them against terrorism, and this would not have required a declaration of war from the Congress.

The most harmful claim of prerogative by the President has been the claim that the President can wage war without a declaration of war by Congress.  In the ratification debates over the Constitution, critics charged that the President would become an elected monarch with many of the powers of the British King.  Hamilton in The Federalist insisted that while the President did have some monarchic powers, he did not have the most dangerous powers, such as the power to declare war, which the Constitution gave to Congress.  Now, however, the President regularly declares war without any Congressional declaration of war, which is one of the most fundamental violations of the constitutional framework.

The constitutional status of the Civil War was unclear, because Lincoln and the Union leaders refused to recognize any right of secession by the states, and consequently the Civil War was not, strictly speaking, a war.  Under the emergency powers granted by the Constitution, the Union's fight against the Confederacy should have been identified as a fight against a "rebellion" or an "insurrection."  This would not have required a declaration of war from Congress.

The emergency powers of the President have expanded, because the United States has been in a perpetual state of emergency.  Since 1976, when the Congress passed the National Emergencies Act, presidents have declared 53 states of emergency.  Today, the United States is under 30 presidentially declared states of emergency, which confer on the president vast powers for violating individual rights--such as seizing control of the nation's communication infrastructure, mobilizing military forces, and suspending  the writ of habeas corpus.  Although the National Emergencies Act requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done this only once.  (See Patrick Thronson, "Toward Comprehensive Reform of America's Emergency Law Regime," University of Michigan Journal of Law Reform 46 (Winter 2013): 737-87.)

Here we see the fundamental reason why the Lockean prerogative powers of the President have become so dangerously, and unconstitutionally, expanded--the refusal of Congress to exercise its constitutional powers for constraining the President.

I have written about this in a previous post.


kassem Bahaji said...

This resembles strangely a paper I wrote for you when I was enrolled in one of your seminars in 2014. In fact, I presented the same paper at ECC the same year. Although yours is a much more elaborate, better researched and written paper, I cannot help but see my "fingertips" all over it.

Larry Arnhart said...

Some of this comes from my 1979 article and my chapter on Locke in Political Questions.