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“THE PERPETUATION OF OUR POLITICAL INSTITUTIONS”: LINCOLN, THE POWERS OF THE

COMMANDER IN CHIEF, AND THE CONSTITUTION

Michael Les Benedict*

INTRODUCTION Late in January 1838, gangly young Abraham Lincoln, an up-and-

coming young lawyer in Springfield, Illinois, agreed to deliver a lecture at the town’s vibrant cultural center, the Young Men’s Lyceum. Lincoln was worried that Americans were giving up on the ideal of the rule of law. The previous two years had seen a number of vigilante actions, including bloody riots aimed at immigrants, African Americans, and abolitionists. He warned against a “growing disposition to substitute the wild and furious passions, in lieu of the sober judgments of Courts; and the worse than savage, mobs for the executive ministers of justice.”1 Lincoln was worried about the widespread support for Andrew Jackson, despite his high-handed withdrawal of government funds from the national bank in disregard of the law, his contempt for the rights of Native Americans as defined by the Supreme Court, and his past abuses of authority as military commander in the Seminole War. Jackson’s career presaged the rise of some worse demagogue, he feared—some “Alexander, a Caesar, or a Napoleon,”2 who would scorn the constrained public offices established by the Constitution.

Lincoln doubted that the constitutional structures of American government provided adequate safeguards, nor did he rely on the courts to counteract such a usurper. The only assurance against such a disaster was public commitment to law, he warned. “Let every American, every lover of liberty . . . swear . . . never to violate in the least particular, the laws of the country; and never to tolerate their violation by others,” he declaimed. “Let reverence for the laws . . . become the political religion

* Michael Les Benedict is Emeritus Professor of History at The Ohio State University, where he was also adjunct professor at the Michael E. Moritz College of Law. 1 ABRAHAM LINCOLN, ADDRESS BEFORE THE YOUNG MEN’S LYCEUM OF SPRINGFIELD, ILLINOIS, (Jan. 27, 1838), reprinted in 1 THE COLLECTED WORKS OF ABRAHAM LINCOLN 108 (Roy P. Basler ed., 1953) [hereinafter COLLECTED WORKS].

2 Id. at 114.


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of the nation.” 3 Later, as a young Whig congressman, Lincoln insisted that

Congress, rather than the president, best represented the interests and ideas of the nation. Presidents should refrain from using their influence or their veto power to control congressional deliberations. He was particularly worried about the ability of presidents to use their power as commander in chief of the armed forces to drag the country into war, as he believed James K. Polk had done with Mexico.4

How ironic that the actions of the same man would be praised for arguing “cogently and at length that the Constitution . . . may be wisely sacrificed to preserve the people,”5 and would be cited as authority to justify presidential disregard of domestic statutes and international law. How ironic that political scientists and historians would describe his “constitutional usurpations,”6 and characterize his actions in dealing with the crisis as “constitutional dictatorship.”7 Even Arthur M. 3 Id. at 112 (emphasis omitted). 4 ABRAHAM LINCOLN, SPEECH IN U.S. HOUSE OF REPRESENTATIVES ON THE PRESIDENTIAL QUESTION (July 27, 1848), reprinted in 1 COLLECTED WORKS, supra note 1, at 501, 504-505; Letter from Abraham Lincoln to William H. Herndon (Feb. 15, 1848) in 1 COLLECTED WORKS, supra note 1, at 451. 5 HENRY PAOLUCCI & RICHARD C. CLARK, PRESIDENTIAL POWER AND CRISIS GOVERNMENT IN THE AGE OF TERRORISM 29 (2003). 6 JAMES MACGREGOR BURNS, PRESIDENTIAL GOVERNMENT: THE CRUCIBLE OF LEADERSHIP 36 (1965). 7 Although William Archibald Dunning referred to Lincoln’s “temporary dictatorship” as early as 1898 and William B. Weeden claimed he “reached the powers of a dictator” in 1906, the notion of Lincoln as “constitutional dictator” was most fully developed in CLINTON L. ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (1948). See also WILLIAM ARCHIBALD DUNNING, ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION AND RELATED TOPICS 20-21 (1897); WILLIAM B. WEEDEN, WAR GOVERNMENT, FEDERAL AND STATE IN MASSACHUSETTS, NEW YORK, PENNSYLVANIA AND INDIANA, 1861-1865, at x (1906). Rossiter’s formulation strongly and permanently influenced political scientists. EDWARD S. CORWIN referred to “Lincoln’s ‘Dictatorship’” in his classic THE PRESIDENT: OFFICE AND POWERS, 1787-1984: HISTORY AND ANALYSIS OF PRACTICE AND OPINION 20 (Randall W. Bland et al. eds., 5th rev. ed. 1984). Lincoln’s were the key precedents Corwin cited in Wilson and “Precedents for Presidential Dictatorship,” THE NEW REPUBLIC, June 9, 1917, at 153-55, reprinted in PRESIDENTIAL POWER AND THE CONSTITUTION: ESSAYS BY EDWARD S. CORWIN 23, 23-24 (Richard Loss ed., 1976). RICHARD M. PIOUS referred to Lincoln’s “constitutional dictatorship” in his 1979 textbook THE AMERICAN PRESIDENCY 57 (1979), and in a revision, THE PRESIDENCY 81-83 (1996), as have JAMES W. DAVIS in THE AMERICAN PRESIDENCY 24 (2d ed. 1995), and LOUIS W. KOENIG in THE CHIEF EXECUTIVE 7 (6th ed. 1996). Political scientists and lawyers have regularly claimed that to save the Union, Lincoln acted illegally or extra-constitutionally. See, e.g., GOTTFRIED DIETZE, AMERICA’S POLITICAL DILEMMA: FROM LIMITED TO UNLIMITED DEMOCRACY 17-62 (1968); FERDINAND LUNDBERG, CRACKS IN THE CONSTITUTION 25 (1980); DWIGHT G. ANDERSON, ABRAHAM LINCOLN: THE QUEST FOR IMMORTALITY 8, 10-11, 166, 219 (1982); ARTHUR SELWYN MILLER, DEMOCRATIC DICTATORSHIP: THE EMERGENT CONSTITUTION OF CONTROL 77-80 (1981); KOENIG, supra, at 330; FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR: THE WAR POWER OF CONGRESS IN HISTORY AND LAW, at vii (1986); DANIEL C. DILLER & STEPHEN H. WIRLS, Commander in Chief, in DILLER AND WIRLS, POWERS OF THE PRESIDENCY 163, 169 (2d ed., 1997); HAROLD J. KRENT, PRESIDENTIAL POWERS 140 (2005); Frank J. Williams, “Doing Less” and “Doing More”: The President and the Proclamation—Legally, Militarily, and


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Schlesinger, Jr., who certainly appreciated Lincoln’s greatness, would refer to him as a “despot.”8

The Civil War was a formative time in the development of the notion of a presidential war power as commander in chief. Indeed, the concept of a presidential “war power” was first articulated during the era.9 Moreover, Abraham Lincoln’s exercise of the war power retains special precedential value today, because of the prestige of Lincoln himself. As presidential historian Clinton Rossiter observed, “Lincoln is the supreme myth, the richest symbol in the American experience. . . . [W]ho . . . can measure the strength that is given to the President because he holds Lincoln’s office, lives in Lincoln’s house, and walks in Lincoln’s way?”10

One reason that Lincoln’s example remains so influential is that he wielded power as commander in chief so successfully, achieving the national government’s war aims. His decisions were the single most important factor in saving the Union. If he had not taken the steps he did, without congressional authorization, especially the decision to initiate coercion immediately after the firing upon Fort Sumter, it is quite likely that secession would have succeeded. Lincoln’s accomplishment reinforces both the legitimacy and efficacy of a broad construction of presidential war powers as commander in chief. Equally important, Lincoln’s record demonstrates that such powers can be wielded aggressively by a president with the right character without seriously eroding democracy and liberty. As Judge Williams has put it, “[w]hat made Lincoln a successful commander in chief was his

Politically, in THE EMANCIPATION PROCLAMATION: THREE VIEWS 48, 55 (Harold Holzer et al. eds., 2006). Some historians do the same. See, for a present-day example, American President: President Abraham Lincoln: Impact and Legacy, http://www.millercenter.virginia.edu/Ampres/essays/lincoln/biography/9 (last visited October 15, 2007); see also James G. Randall, Lincoln in the Role of Dictator, 28 S. ATLANTIC Q. 236 (1929) (comparing Lincoln to a dictator). 8 In The Imperial Presidency, Arthur Schlesinger seemed to interpret Lincoln’s actions to have been extra-constitutional, despite Lincoln’s effort to constitutionalize them under the rubric of “war powers.” ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 58-67 (Houghton Mifflin 1989) (1973). Schlesinger referred to him as a “despot.” Id. at 59. Schlesinger has remained ambivalent, declaring in a 1988 lecture that “Of course, Lincoln was far from a dictator,” but then immediately adding that he had “assumed quasi-dictatorial powers.” ARTHUR M. SCHLESINGER, JR., WAR AND THE CONSTITUTION: ABRAHAM LINCOLN AND FRANKLIN D. ROOSEVELT 15-16 (1988). In 2004, he stated flatly, “Both Lincoln and [Franklin Delano] Roosevelt undertook acts they knew to go beyond the Constitution.” ARTHUR M. SCHLESINGER, JR., WAR AND THE AMERICAN PRESIDENCY 51 (2004). 9 Schlesinger points out that before the Civil War, discussions referred to the war power of the government. Lincoln’s “innovation was to attach this ‘tremendous’ war power to the presidency.” SCHLESINGER, IMPERIAL PRESIDENCY, supra note 8, at 60. 10 CLINTON ROSSITER, THE AMERICAN PRESIDENCY 94 (3d ed., Johns Hopkins University Press 1987) (1956). Lincoln consistently tops the list of great presidents in polls of historians and political scientists. See JAMES P. PFIFFNER, THE MODERN PRESIDENCY 233-35 (tbl. 8-2) (3d ed. 2000).



constitutional ‘bending’ within the framework of his wise, honest, restrained, inspirational temperament.”11 Thus, every study of the president’s war power is replete with references to Lincoln.12

But those who stress Lincoln’s willingness to disregard constitutional limitations in the Civil War crisis have it wrong. Lincoln did exercise the war powers of the presidency aggressively, but he never claimed the right to transcend constitutional limitations or to escape democratic control. Indeed, he was constrained by the very popular commitment to the rule of law that he had identified as the only security against presidential despotism.

I. LINCOLN’S EXERCISES OF THE WAR POWER AS COMMANDER IN CHIEF

A. Calling Up the Militia and Volunteers, and Increasing the Size of the Army

Article II, section 3 of the Constitution requires the president to

“take Care that the Laws be faithfully executed.”13 Section 2 makes the president commander in chief of the armed forces. The Constitution specifies some aspects of his authority in that capacity. For example, it mandates that he appoint military officers. But beyond specifics, the Constitution clearly envisions that the president as commander in chief will be the authority carrying out congressional policies where the Constitution gives Congress power relating to war and the military 11 FRANK J. WILLIAMS, JUDGING LINCOLN 57 (2002). See also, e.g., GEORGE ANASTAPLO, ABRAHAM LINCOLN: A CONSTITUTIONAL BIOGRAPHY 251-56 (1999); DANIEL FARBER, LINCOLN’S CONSTITUTION 196-200 (2003); Andrew C. McLaughlin, Lincoln, the Constitution, and Democracy, 47 INT’L J. ETHICS 1 (1936); Randall, supra note 7, at 241-43; SCHLESINGER, IMPERIAL PRESIDENCY, supra note 8, at 458-59. 12 For examples, see the indexed references to Lincoln in CLARENCE A. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES (photo. reprint 2003) (1921); CORWIN, THE PRESIDENT, supra note 7, at 263-69 (stating on page 264 that “[t]he sudden emergence of the ‘Commander in Chief’ clause . . . occurred almost overnight” under Lincoln); Corwin, Wilson and ‘Precedents for Presidential Dictatorship,’ supra note 7, at 23 (“The true nature of the presidential prerogative in war time was comprehended by Lincoln perfectly.”); DILLER AND WIRLS, Commander in Chief, in DILLER AND WIRLS, supra note 7, at 168-70 (“President Lincoln’s extraordinary exercise of power during the Civil War demonstrated how far the authority of the presidency could be expanded in wartime.”); DAVIS, supra note 7, at 222-23 (Lincoln “erased forever [the] narrow interpretation of the president’s power as commander in chief.”); KOENIG, supra note 7, at 244-45 (referring to the “Lincolnian Pattern” as one of the two justifications for presidential authority in wartime); KRENT, supra note 7, at 113-14; THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF 77-89 (Ernest R. May ed., 1960). Even a book titled Commanders in Chief: Presidential Leadership in Modern Wars lists eight references to Lincoln in its index, more than the number to Jimmy Carter, Gerald Ford, or Ronald Reagan. JOSEPH G. DAWSON, COMMANDERS IN CHIEF: PRESIDENTIAL LEADERSHIP IN MODERN WARS (1993). 13 U.S. CONST. art. II, § 3.


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establishment.14 Making the president commander in chief also implies a power on

his or her part to make strategic and tactical decisions in any conflict. Just what constitutes an appropriate exercise of this power and whether implying its existence deprives Congress of similar authority are controversial questions, and ones that Lincoln, President Andrew Johnson, and Congress had to face during the war and Reconstruction.

In 1861, the first session of the Thirty-Seventh Congress was to convene, as customary, at the beginning of December.15 Article II, section 3 authorizes the President to call either house of Congress or both into session “on extraordinary Occasions.”16 The secession crisis surely qualified, but Lincoln chose not to call Congress into session immediately upon his inauguration in part because several states had not yet held elections to choose representatives17 but also because he did not want to renew the wrangling over compromises that had characterized the previous Congress.18

By the time South Carolina’s militia attacked Fort Sumter on April 12, 1861, the last elections had been held, but Lincoln still did not call the new Congress into session. He knew that doing so would preclude a forceful response to the provocation. Unionists in the upper South and border states had been barraging him and other Republican leaders with pleas to avoid hostilities. As historian Daniel Crofts has shown, they were in a strong position to marginalize the secessionist Democratic parties in their states, but only if they could secure some compromise on the slavery issue.19 They had moved heaven and earth to forge one in the session of Congress that had just adjourned. They would certainly do the same in the special session if Lincoln called one immediately. As long as there was a chance for a peaceful resolution to the crisis, 14 Article I, section 8 gives Congress the responsibility for declaring war; raising and supporting the armed forces of the United States; and organizing, disciplining, and calling up the state militias for national purposes. Given the Constitution’s designation of the president as commander in chief, many of these powers must be exercised by instructing the president to carry out congressional mandates. See U.S. CONST. art. I, § 8, cl. 1. 15 Article I, section 4 specified the first Monday in December as the date Congress should assemble unless altered by law, which was rarely done. See U.S. CONST. art. I, § 4, cl. 2. 16 Id. at art. II, § 3. 17 James McPherson writes that Lincoln could not have called Congress into session if he had wanted to, because congressmen were elected in the spring of 1861. JAMES M. MCPHERSON, THIS MIGHTY SCOURGE: PERSPECTIVES ON THE CIVIL WAR 211 (2007). This was true only of some states, and only of Ohio among the largest. Most representatives had been elected the previous fall. 18 DAVID HERBERT DONALD ET AL., THE CIVIL WAR AND RECONSTRUCTION 134-38 (2001); JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 248-57 (1988). For detailed accounts, see DAVID M. POTTER, LINCOLN AND HIS PARTY IN THE SECESSION CRISIS (1942) and KENNETH M. STAMPP, AND THE WAR CAME: THE NORTH AND THE SECESSION CRISIS, 1860-1861 (1950). 19 DANIEL CROFTS, RELUCTANT CONFEDERATES: UPPER SOUTH UNIONISTS IN THE SECESSION CRISIS (1989).



they could stave off the secessionists, they insisted. Representatives from all the states of the Border and Upper South would be present, urging compromise upon their colleagues. Moreover, some congressmen surely would insist that they must take formal action to recognize a state of war. Such an effort would raise tangled issues of the status of the southern states and their citizens, and southern unionists would be sure to oppose it. Under these circumstances, was it conceivable that Congress would act quickly to increase the size of the armed forces? Even if it did act, might it prefer to utilize the militia?

Could Lincoln act while Congress debated? James Buchanan had insisted that the president had no such power.20 Acting forcefully without congressional authority while it was in session would be far more difficult than acting forcefully while it was adjourned. In sum, calling Congress would have been a decisive turn towards conciliation, eschewing coercion as an alternative and possibly disrupting the Republican party itself.

So Lincoln called a special session for July 4.21 That meant Congress would not be in session formally to recognize a state of war or insurrection. It could not pass legislation increasing the size of the armed forces. It could not pass other emergency legislation, or delegate emergency authority to the president—if the Constitution permitted such a delegation of legislative power in the first place. His decision raised the question of what authority existing laws and the Constitution gave him to act.

The Constitution imposes an obligation on the president to preserve the Constitution and enforce the laws of the United States. To fulfill that responsibility, on April 15 Lincoln issued a proclamation calling for 75,000 men to suppress the rebellion in conformity with the Militia Act of 1795, which authorized the president to call out the militia whenever the laws of the United States were opposed by “combinations too powerful to be suppressed by the course of ordinary judicial proceedings.”22 Lincoln used the identical language in his proclamation.23 Militia raised under this call rushed from Massachusetts, overcame resistance in Maryland, and reached Washington in time to protect the vulnerable capital.

Up to this point, Lincoln reported later, “all was believed to be

20 For Buchanan’s constricted view of presidential power, see James Buchanan, Fourth Annual Message to Congress (Dec. 3, 1860), in 7 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 3157, 3165-66 (James D. Richardson ed., Bureau of National Literature, 1897) [hereinafter MESSAGES AND PAPERS]. Buchanan denied that Congress had constitutional authority to coerce seceding states as well. Id. at 3166-67. 21 Abraham Lincoln, Proclamation (Apr. 15, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3214, 3214. 22 Militia Act of 1795, ch. 36, 1 Stat. 424 (1795). 23 Lincoln, supra note 21, at 3214-15.


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strictly legal.”24 But Lincoln was not willing to rely on the state militia to suppress the resistance. He could have done so. It was not that he needed more men than the states could provide. Although state governments had allowed the militia to atrophy, several governors had quickly been able to organize 80,000 men. New York, Pennsylvania, and Massachusetts alone had responded with enough men to supply his earlier call. All the other northern states were raising militia and arranging for funds to support them.25 The real problem was with the Militia Act itself, which set the terms of service at only three months. Moreover, even if called up for federal service, the militia was inherently a state institution; it was inevitable that there would be conflict between state and federal authority over its use and maintenance.26 But no statute authorized Lincoln to increase the size of the U.S. armed forces.

Unwilling to rely on the Militia Act, on April 21 Lincoln and his Cabinet formally decided that the president should go beyond the “existing means, agencies, and processes which Congress had provided, . . . availing [himself] of the broader powers conferred by the Constitution [—not the statute—] in cases of insurrection.”27 On May 3 he issued a new proclamation calling for 42,000 volunteers to serve in the United States armed forces for as long as three years.28

This time there was no statute whose language he could quote or paraphrase. Nor did he refer to the necessity of enforcing the laws. Instead, he referred to “existing exigencies” that demanded “immediate and adequate measures for the protection of the National Constitution and the preservation of the National Union.”29 That language harkened to the presidential oath specified by Article II, section 1: ”I do solemnly swear (or affirm) that I . . . will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” For that purpose, he said, “military force in addition to that called forth” by his prior message “appears to be indispensably necessary” and he reiterated his status as “Commander in Chief of the Army and Navy” in calling it

24 Abraham Lincoln, Special Session Message (July 4, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3221, 3225. 25 FRED ALBERT SHANNON, 1 THE ORGANIZATION AND ADMINISTRATION OF THE UNION ARMY, 1861-1865, at 31-32, 34-35 (1928). 26 For problems with relying on the militia in the first part of the nineteenth century—and Americans’ commitment to it despite those problems—see JOHN K. MAHON, HISTORY OF THE MILITIA AND THE NATIONAL GUARD 63-96 (1983). 27 Abraham Lincoln, Message to the Senate and House of Representatives (May 26, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3278, 3279; 4 JOHN G. NICOLAY & JOHN HAY, ABRAHAM LINCOLN: A HISTORY 136-37 (1886). Lincoln misidentified the date of the Cabinet meeting as April 20. 28 Abraham Lincoln, A Proclamation (May 3, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3216, 3217. 29 Id. at 3216.



for it.30 So when calling for volunteers to fill a unilaterally declared increase in the size of the armed forces, Lincoln relied on his presidential war powers rather than a more narrowly focused obligation to enforce the laws.

“These measures, whether strictly legal or not,” Lincoln conceded, “were ventured upon under what appeared to be a popular demand and a public necessity.”31 He announced that the call for volunteers “together with the plan of organization adopted for the volunteer and for the regular forces hereby authorized, [would] be submitted to Congress as soon as assembled.”32 In his special message to Congress when it finally convened July 4, Lincoln acknowledged that he had taken steps without statutory authority, “trusting then, as now, that Congress would readily ratify” his actions.33 Congress obliged a month later, declaring:

That all the acts, proclamations, and orders of the President . . . respecting the army and the 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 under the previous express authority and direction of the Congress of the United States.34

Even before that it had authorized an expansion of the armed forces to 500,000 men.35

B. Blockade

A few days after his initial call for militia troops, Lincoln had

ordered a blockade of the ports of the states that had seceded by that time. He added others in succeeding weeks.36 He claimed to be acting “in pursuance of the laws of the United States and of the law of nations,”37 but it is not clear just what federal law he was referring to. Moreover, the rule is that a government closes its own ports and blockades those of an enemy nation.38 In either case, the steps appeared 30 Id. at 3217. 31 Lincoln, supra note 24, at 3225. 32 Lincoln, supra note 28, at 3217. 33 Lincoln, supra note 24, at 3225. 34 Act of Aug. 6, 1861, ch. 63, 12 Stat. 326 (1861). 35 Act of July 22, 1861, ch. 9, 12 Stat. 268 (1861). 36 Abraham Lincoln, A Proclamation (Apr. 19, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3215, 3215-16; Abraham Lincoln, A Proclamation (Apr. 27, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3216; Abraham Lincoln, A Proclamation (May 10, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3217, 3218. 37 Lincoln, A Proclamation (Apr. 19, 1861), supra note 36, at 3215. 38 Stuart Anderson, 1861: Blockade vs. Closing The Confederate Ports, 41 MIL. AFF. 190, 190 (1977).


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to required congressional action—a declaration of war to justify a blockade or a statute to close American ports, such as the Embargo Acts that Thomas Jefferson secured to close American ports to British and French shipping during the Napoleonic Wars.39 With Congress adjourned, Lincoln had to act on his own. When it convened in special session, Congress quickly passed a law authorizing the blockade,40 and Lincoln relied upon it for authority in all later proclamations on the subject.41

C. Expenditures Unauthorized by Statute

In the first weeks of the war, Lincoln directed federal officials to

purchase or charter and arm steamships without following procedures specified by statute. He ordered Secretary of War Simon Cameron to authorize state officials to arrange transport for soldiers and munitions until normal communications were restored between the Washington and the North. He instructed Treasury Secretary Salmon P. Chase to advance two million dollars to private parties in New York to pay for any requisitions necessary to defend the government. Congress was not in session to authorize such actions, but so many secessionists still held federal offices that it was impossible to act through normal channels. As Lincoln explained: “I believe that by these and other similar measures taken in that crisis, some of which were without any authority of law, the Government was saved from overthrow.”42

D. Suspension of Habeas Corpus

The militia Lincoln had called out in his proclamation of April 15

rushed down from Massachusetts to protect Washington. They met resistance in Baltimore, where they had to cross the city on foot from one railroad station to another. A mob hurled bricks and paving stones, firing pistol shots. A few soldiers shot back, and the enraged mob attacked with every weapon people could find. After the soldiers fought their way to Washington-bound railway, city authorities ordered the bridges destroyed on the railroad line from the North. Secessionists tore 39 Embargo Acts, ch. 5, 2 Stat. 451 (1807); ch. 8, 2 Stat. 453 (1808); ch. 33, 2 Stat. 473 (1808). 40 Act of July 13, 1861, ch. 3, 12 Stat. 255 (1861). 41 See, e.g., Abraham Lincoln, A Proclamation (May 12, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3290, 3290-91; Abraham Lincoln, A Proclamation (Feb. 18, 1863), in 8 MESSAGES AND PAPERS, supra note 20, at 3417, 3417-18; Abraham Lincoln, A Proclamation (Nov. 19, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3431. 42 Lincoln, supra note 27, at 3280.



up tracks and telegraph wires, cutting communications to the capital. The governor called the secessionist-dominated state legislature into session.43 On April 25 Lincoln issued an executive order authorizing the commanding general of the army, Winfield Scott, to suspend the privilege of the writ of habeas corpus along any line between Philadelphia and Washington where soldiers met resistance.44 In July he extended the area to New York, and in October all the way to Bangor, Maine.45 Neither of these orders had been made public. But in May Lincoln issued an official proclamation authorizing the commander of armed forces along the coast of Florida to suspend the writ.46 In December he authorized the writ to be suspended throughout Missouri, although the military there had declared martial law, made arrests, and instituted military commissions as early as May, with Lincoln’s knowledge.47 In April 1862 he authorized General John A. Dix to assume control of the Baltimore city police and, if necessary, replace them with military police. At the same time he authorized Dix to suspend the writ of habeas corpus “and perform all military power, function, and authority that he may deem proper . . . to secure obedience and respect to the authority and Government of the United States.”48 In August 1862 he suspended the writ throughout the nation in the case of anyone arrested for “disloyal practices” or draft evasion.49

Not until Mach 3, 1863 did Congress finally pass a law suspending the privilege of the writ of habeas corpus—the Habeas Corpus Act of 1863.50 On September 15, 1863, Lincoln proclaimed the suspension of the privilege throughout the United States for the war’s duration, for the first time acting under statutory authority.51 In July, 1864, he relied upon the Habeas Corpus Act to declare martial law in Kentucky.52 43 For an overview, see MCPHERSON, supra note 18, at 285-87. For a more detailed account, see DEAN SPRAGUE, FREEDOM UNDER LINCOLN 1-17 (1965). 44 Abraham Lincoln, Order to the Commanding General of the Army of the United States (Apr. 27, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3219. 45 Abraham Lincoln, Order to the Commanding General of the Army of the United States (July 2, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3220. 46 Abraham Lincoln, A Proclamation (May 10, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3217, 3217-18. 47 Abraham Lincoln, Executive Orders (Dec. 2, 1861), in 8 MESSAGES AND PAPERS, supra note 20, at 3300, 3300. For the story in Missouri, see MARK E. NEELY JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES 32-50 (1991); SPRAGUE, supra note 43, at 57-94. 48 Abraham Lincoln, Executive Order (Apr. 5, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3313. 49 Abraham Lincoln, Executive Order (Aug. 8, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3322. 50 Habeas Corpus Act of 1863, ch. 81, 12 Stat. 755 (1863). 51 Abraham Lincoln, A Proclamation (Sept. 15, 1863), in 8 MESSAGES AND PAPERS, supra note 20, at 3371, 3371-72. 52 Abraham Lincoln, Proclamation (July 5, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3420, 3420-22.


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The suspension of the writ of habeas corpus led to the arrest and imprisonment of thousands of civilians.53 Mark E. Neely has performed the most exhaustive inquiry of the chaotic and incomplete records. Although one can never ascertain the correct count, he found the traditional number of 13,535 military arrests of civilians to be a gross underestimate.54 Neely did not distinguish between those arrested before March 3, 1863, when the military acted on Lincoln’s sole authority, and afterwards, when Lincoln’s orders and proclamations rested on the authority of the Habeas Corpus Act as well. The numbers make little difference. Lincoln claimed that his obligations as commander in chief justified him in suspending habeas corpus, and he acted on that claim. When he ordered the prisoners to be paroled upon an oath that they would not render aid or comfort to those in rebellion, he excepted any “whose release . . . may be deemed incompatible with the public safety.”55 He appointed a two-person special commission, consisting of a military officer and a civilian, to determine whether those who remained in custody should be released, continue to be held, or be turned over to civil courts for trial.56

E. Trial of Civilians by Military Commission

Lincoln went beyond the mere suspension of the writ of habeas

corpus. “As a necessary measure” for suppressing the rebellion, he subjected all its “aiders and abettors” and “all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States” to trial and punishment by military commission.57 53 For studies of the Lincoln administration’s internal security program, see SPRAGUE, supra note 43, which takes a civil-libertarian approach that stresses abuses, and NEELY, supra note 47, which concludes that, despite abuses, the program was targeted at securing southern and border states and enforcing the draft. 54 Id. at 130-31. 55 Abraham Lincoln, Executive Order No. 1, Relating to Political Prisoners (Feb. 14, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3303, 3304-05. 56 Abraham Lincoln, Executive Order (Feb. 27, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3310. 57 Abraham Lincoln, Proclamation (Sept. 24, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3299-300. This proclamation had been preceded by War Department orders issued six weeks before that had unleashed a wave of arbitrary arrests directing local constables and other authorities to arrest and imprison anyone “who may be engaged, by act, speech, or writing” in discouraging enlistments “or in any way giving aid and comfort to the enemy, or in any other disloyal practice.” The orders authorized trial and punishment of those so arrested by military commission. Mark E. Neely, the foremost historian of civil liberty in the Civil War, has called the month following the issuance of the War Department orders the nadir of civil liberty during the Civil War and one of the worst episodes of denial of civil liberties in American history. The War Department reined the excesses in by a new order September 8. NEELY, supra note 47, at 51-65. Lincoln’s proclamation, worded with more restraint than the prior orders, was part of the



Congress never explicitly authorized such commissions. Military commanders in Missouri had established them as incident to the application of martial law. Lincoln had accepted their legitimacy, requiring only that any death sentence be sent to him for final approval.58 Existing records indicate that military commissions tried over four thousand civilians during the course of the war and its immediate aftermath—including those accused of conspiring with John Wilkes Booth to assassinate Lincoln himself.59

F. Suppression of Newspapers

After an initial, largely successful effort to muzzle the influential

anti-war press in New York,60 there were only sporadic efforts to control northern newspapers and publications during the Civil War, no matter how critical of administration policies. Military commanders and a few zealous U.S. attorneys arrested a number of editors, who were denied the privilege of habeas corpus. Newspaper offices were mobbed by outraged patriots after particularly egregious criticisms of the war. But these were sporadic events; there was no organized and centralized program of suppressing the opposition press.61

Only once did Lincoln initiate the suppression of a newspaper. In May, 1864, the bitterly hostile Democratic organs the New York World and (New York) Journal of Commerce “wickedly and traitorously” printed a bogus presidential proclamation recounting military disasters and spuriously calling for another 400,000 volunteers. Lincoln furiously ordered the reluctant General Dix, now in command in New York, to take control of the newspapers’ printing facilities; arrest their process. 58 NEELY, supra note 47, at 32-35. 59 Id. at 129; ROY Z. CHAMLEE, LINCOLN’S ASSASSINS: A COMPLETE ACCOUNT OF THEIR CAPTURE, TRIAL, AND PUNISHMENT (1990); Douglas Linder, The Trial of the Lincoln Conspirators, in FAMOUS TRIALS (2002), http://www.law.umkc.edu/faculty/projects/ftrials/lincolnconspiracy/lincolnconspiracy.html. 60 In the early months of the war a New York grand jury brought a presentment against several New York newspapers that had used strong language to condemn Lincoln’s decision to use force against the seceding states. However, the decision of Postmaster General Montgomery Blair, sustained by an opinion of the attorney general, to refuse the use of the mails to journals that disturbed the public peace or subverted the government, was far more effective. It led one of New York’s leading Democratic newspapers, the New York News, to cease publishing and others to soften their positions. But this was not justified as an exercise of the president’s war powers. See JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 500-502 (1951); SPRAGUE, supra note 43, at 141-49. 61 For a critical account of suppression of dissenting opinion in the North, see FRANK L. KLEMENT, President Lincoln, the Civil War, and the Bill of Rights, 94 LINCOLN HERALD 10 (1992), reprinted in LINCOLN’S CRITICS: THE COPPERHEADS OF THE NORTH 24-38 (Steven K. Rogstad ed., 1999). See also RANDALL, supra note 60, at 477-510; ROBERT S. HARPER, LINCOLN AND THE PRESS (1951).


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editors, owners, and publishers; and hold them for trial before a military commission.62 Three days later Lincoln thought better of his actions, and the offenders were released. The newspapers reopened for business. A year earlier, Lincoln had acted with greater restraint, countermanding General Ambrose Burnside’s order suppressing the publication of the Peace Democrat-oriented Chicago Times.63

But Lincoln did not doubt that it was within the military authority to take such actions. Military commanders in the border states and the South, where there was active disloyalty, occasionally brought editors who supported the Confederacy before military commissions. They suppressed a few pro-Confederate organs, including leading newspapers in important cities. In the border states, these actions took place early in the war as part of the desperate effort of unionists to gain control.64 Lincoln early on affirmed his belief that such actions were legitimate. When Missouri’s conservative Governor Hamilton R. Gamble protested the suppression of pro-Confederate sheets there, Lincoln responded, “When an officer in any department finds that a newspaper is pursuing a course calculated to embarrass his operations and stir up sedition and tumult, he has the right to lay hands upon it and suppress it . . . .”65 Furthermore, Lincoln did not call for any congressional legislation to provide guidance.66

Lincoln acted under congressional authority to establish a relatively inefficient system for censoring reports about military operations and preparations. He also issued an executive order authorizing the prosecution under the articles of war of anyone whose reports “verbally or by writing, printing, or telegraphing” were given to the enemy, either “directly or indirectly.”67 An exasperated General William Tecumseh Sherman tried and failed to prosecute over-zealous reporters in his command for, in effect, giving intelligence to the enemy. In the end, little could be done but appeal to reporters’ patriotism.68

62 Abraham Lincoln, Proclamation (May 18, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3438. See also HARPER, supra note 61, at 289-303. 63 HARPER, supra note 61, at 257-64. 64 See, for example, Sprague’s account of federal suppression of pro-Confederate newspapers and editors in Missouri and Kentucky in 1861. SPRAGUE, supra note 43, at 93-94, 226-27, 230, 267-68. 65 8 NICOLAY & HAY, ABRAHAM LINCOLN, supra note 27, at 217. 66 An account of the Lincoln’s response to the complaints of conservative unionists in Missouri may be found id., at 215-19. 67 Abraham Lincoln, Proclamation (Aug. 7, 1861), in 8 MESSAGES AND PAPERS, supra note 20, at 3240. 68 RANDALL, supra note 60, at 477-92.



II. LINCOLN’S JUSTIFICATIONS

Lincoln initially justified his actions as necessary to fulfill his

obligation to enforce the laws of the United States. His proclamations calling forth the militia and blockading southern ports both began by citing resistance to the laws of the United States.69 This was the grounds on which he defended his suspension of the privilege of the writ of habeas corpus despite Chief Justice Taney’s opinion in Ex parte Merryman70 that the Constitution delegated that authority solely to Congress. Lincoln argued: “The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. . . . Are all the laws but one to go unexecuted . . . lest that one be violated?”71

But Lincoln sought broader and firmer constitutional justification for wide-ranging action. In his proclamation of May 3 calling for volunteers to fill the ranks of an enlarged army and navy, he explicitly linked his responsibility to execute the laws with his oath to preserve and protect the Constitution. Furthermore, he interpreted preserving the Constitution to mean preserving the Union it created, in effect declaring himself the protector of the nation. He declared that he was acting “for the protection of the National Constitution and the preservation of the Union by the suppression of the insurrectionary combinations now existing in several States for opposing the laws of the Union and obstructing the execution thereof.”72 (In a later defense of his actions, he described the rebellion as an “effort to destroy Union, constitution, and law, all together.”73) By combining his obligation to enforce the laws, to protect the Constitution, and to preserve the Union with his status as commander in chief, Lincoln created a powerful source of authority—the war powers of the president.

Lincoln insisted that he was obligated to exercise these war powers to whatever extent necessary to preserve the Constitution and the nation. If he had not acted on his own authority during the crisis following the firing on Fort Sumter, he asked, would he not have violated his oath? Did not the Constitution’s injunction that he preserve the Constitution mandate action even in the absence of statutory authorization?74 As he 69 Lincoln, supra note 21, at 3214; Lincoln, Proclamation (Apr. 19, 1861), supra note 36, at 3215. 70 Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487). 71 Lincoln, supra note 24, at 3226. Lincoln immediately denied that the Constitution placed the power of suspending the writ of habeas corpus solely in Congress. Id. 72 Lincoln, supra note 28, at 3216-17. 73 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), in 6 COLLECTED WORKS, supra note 1, at 260, 263. 74 Lincoln, supra note 24, at 3226. As James McPherson points out, Lincoln’s messages to


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put it in an “enormously effective” public letter to critical New York Democrats, he believed “that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them.”75

The justices of the Supreme Court may not have agreed with the specific applications of Lincoln’s doctrine of presidential war powers. After the war was over, they would rule unconstitutional his use of military commissions to try civilians in areas outside the zone of combat, for example.76 But they conceded that such powers existed. Sustaining his blockade of southern ports in The Prize Cases, the Court held that an insurrection or invasion could precipitate a state of war without a congressional declaration and that the president had inherent authority to take actions necessary to fight it. Once a state of war existed, the laws of war justified the proclamation of a blockade, and “[t]hat the President, as the Executive Chief of the Government and Commander-in-chief of the Army and Navy, was the proper person to make such notification, has not been, and cannot be disputed.”77 The president “is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States,” the justices affirmed. “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 . . . is bound to accept the challenge without waiting for any special legislative authority.”78 The same was true of the rebellion. “This greatest of civil wars. . . . sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself . . . .”79

Lincoln believed the obligations that the Constitution imposed upon him justified his declaration of the blockade, his call for volunteers, his emergency expenditure of funds without congressional authorization, and his suspension of the privilege of the writ of habeas corpus. It was conceivable that it might require him to emancipate slaves behind rebel lines; it necessitated a reconstruction policy designed to weaken southern resolve and foster loyalty.

Congress and letters to public figures were “broadcast” to the general public in the original meaning of the word, which referred to wide dissemination of printed material. MCPHERSON, supra note 17, at 216-17. 75 Letter from Abraham Lincoln to Erastus Corning and Others, supra note 73, at 267. 76 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 77 The Prize Cases, 67 U.S. (2 Black) 635, 666 (1863). 78 Id. at 668. 79 Id. at 668-69.



III. PRESIDENTIAL WAR POWER, THE EMANCIPATION PROCLAMATION, AND RECONSTRUCTION

A. The Emancipation Proclamation The call-ups, the blockade, and the suspensions of the privilege of

habeas corpus were at least clearly and directly related to waging war. More controversial were assertions of presidential war power over matters of broad public policy like slavery and Reconstruction.

It is well known that Lincoln was slow to take the momentous step of freeing southern slaves, at least in comparison to most Republicans. Nowhere were political and constitutional considerations more closely intertwined. Throughout the war, Lincoln was adamant that only military necessity to save the Union could justify him in taking such action as commander in chief. While all indispensable means must be taken to preserve the Union, “[w]e should not be in haste to determine that radical and extreme measures, which may reach the loyal as well as the disloyal, are indispensable.”80 Like many Republicans, Lincoln assumed that there was an undercurrent of unionism in the South that had been suppressed during the secession crisis, and that the loyalty of many who had been swept into the secession movement by the passions of the hour might be revived.81 His success in reinforcing unionists in the Border States through a mixture of forceful military action and reassurances regarding slavery confirmed his perception. Building on this experience, Lincoln worked to establish loyal governments as quickly as possible wherever Union forces established beachheads.82 Acting against slavery reduced the prospects for reviving loyalty and reassuring southern unionism.83 It would weaken the prospects for saving the Union, rather than strengthening them. From this perspective, emancipation could not be justified as a military necessity. In his famous public letter to New York Tribune editor Horace Greeley, Lincoln explained, “I would save the Union. I would save it the shortest way under the Constitution. . . . What I do about slavery and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.”84 But if a policy of encouraging southern unionism failed to 80 Abraham Lincoln, First Annual Message to Congress (Dec. 3, 1861), in 8 MESSAGES AND PAPERS, supra note 20, at 3245, 3256. 81 WILLIAM C. HARRIS, WITH CHARITY FOR ALL: LINCOLN AND THE RESTORATION OF THE UNION 43 (1997); BROOKS D. SIMPSON, THE RECONSTRUCTION PRESIDENTS 17-27 (1998); MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF SLAVERY, AND THE THIRTEENTH AMENDMENT 25-27 (2001). 82 HARRIS, supra note 81, at 33-96. 83 Id. at 56. 84 Letter from Abraham Lincoln to Horace Greeley (Aug. 22, 1862), in 5 COLLECTED


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end the war, other measures would become necessary. “I shall do less whenever I shall believe what I am doing hurts the cause,” Lincoln avowed, “and I shall do more whenever I shall believe doing more will help the cause.”85

The response to Greeley illustrated Lincoln’s gift for articulating what one might call “constitutional politics.” It stated an essentially constitutional argument in political terms that he knew would be attractive to voters. In fact, at the time he wrote it, he had already decided that the situation dictated an emancipation policy, and he had already drafted what became the Preliminary Emancipation Proclamation.86

Lincoln made clear as early as March 1862 that military necessity might force a policy of emancipation. In a message urging Congress to pledge “pecuniary aid” to states undertaking a program of voluntary emancipation, he warned southerners that “the Union must be preserved, and hence all indispensable means must be employed.”87 The war would end as soon as southerners acknowledged national authority, but if resistance continued, Lincoln warned, “it is impossible to foresee all the incidents which may attend and all the ruin which may follow it.” Such actions “as may seem indispensable . . . toward ending the struggle must and will come.” In the context of a message about emancipation, there could be little doubt about what the “impossible-to-foresee” incidents of war were.88 Two months later, General David Hunter declared slaves free within his command of the Department of the South (Georgia, Florida, and South Carolina). Lincoln countermanded the order, but again warned that emancipation might become a wartime necessity. “[W]hether it be competent for me, as Commander in chief of the Army and Navy, to declare the slaves of any State or States free, and whether at any time, in any case, it shall have become a necessity indispensable to the maintenance of the Government to exercise such supposed power, are questions which, under my responsibility, I reserve to myself,” he affirmed.89 When Maryland Senator Reverdy Johnson, serving as intermediary for residents of occupied Louisiana, relayed their complaints that General John S. Phelps appeared to be promoting emancipation there, Lincoln responded that they “know how to be cured of General Phelps”—by “simply . . .

WORKS, supra note 1, at 388, 388 (emphasis omitted). 85 Id. at 388-89 (emphasis omitted). 86 GEOFFREY PERRET, LINCOLN’S WAR: THE UNTOLD STORY OF AMERICA’S GREATEST PRESIDENT AS COMMANDER IN CHIEF 203-206 (2004). 87 Abraham Lincoln, Message to Congress (Mar. 6, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3269, 3270. 88 Id. at 3270. 89 Abraham Lincoln, Proclamation (May 19, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3292.



tak[ing] their place in the Union upon the old terms.” “If they can conceive of anything worse than General Phelps, within my power, would they not better be looking out for it? . . . I shall not surrender this game leaving any available card unplayed,” he warned.90 Lincoln asked a complaining Louisianan: “What would you do in my position? Would you drop the war where it is? . . . Would you give up the contest, leaving any available means unapplied?”91

Moreover, Lincoln had no doubt about the right to confiscate the property of rebels, signing two confiscation statutes in 1861 and 1862.92 In the case of property other than slaves, he insisted that the Constitution limited the forfeiture to the lifetime of the offender, forcing Congress to acquiesce in an explanatory resolution.93 At first he thought that the confiscation of slaves might be limited in the same way. When General John C. Fremont, military commander in Missouri, ordered the confiscation and emancipation of all slaves of secessionists in the state in 1861, Lincoln countermanded the order. “If a commanding General finds a necessity to seize the farm of a private owner . . . he has the right to do so, and to so hold it, as long as the necessity lasts; and this is within military law, because within military necessity,” he wrote his friend and fellow-lawyer Orville H. Browning. “But to say the farm shall no longer belong to the owner, or his heirs forever . . . is purely political, without the savor of military law about it. And the same is true of slaves. If the General needs them, he can seize them, and use them; but when the need is past, it is not for him to fix their permanent future condition.”94

On the same grounds, Lincoln was unsure whether the decision to free confiscated slaves permanently was within his authority as commander in chief. “I do not say Congress might not with propriety pass a law, on the point . . . .”95 By the time Congress passed its second Confiscation Act, which freed the slaves belonging to supporters of the rebellion, Lincoln had resolved any doubts he had about Congress’s power to emancipate slaves permanently. He signed the law, making his constitutional justification clear: The language simply freeing rebels’ slaves was, he said, “an unfortunate form of expression.” “It is startling to say that Congress can free a slave within a State.” But it 90 Letter from Abraham Lincoln to Reverdy Johnson (July 26, 1862), in 5 COLLECTED WORKS, supra note 1, at 342, 343. 91 Letter from Abraham Lincoln to Cuthbert Bullitt (July 28, 1862), in 5 COLLECTED WORKS, supra note 1, at 344, 346. 92 Act of Aug. 6, 1861, ch. 60, 12 Stat. 319 (1861) (confiscating property used for “Insurrectionary Purposes”); Act of July 17, 1862, ch. 195, 12 Stat. 589 (1862). 93 Abraham Lincoln, Message to Congress (July 17, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3286, 3286-88; Williams, supra note 7, at 54-62. 94 Letter from Abraham Lincoln to Orville H. Browning (Sept. 22, 1861), in 4 COLLECTED WORKS, supra note 1, at 531, 531; see also PERRET, supra note 86, at 84-90. 95 Letter from Abraham Lincoln to Orville H. Browning, supra note 94, at 532.


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could be done nonetheless. “[I]f it were said that the ownership of the slave had first been transferred to the nation and that Congress had then liberated him the difficulty would at once vanish.”96

By 1862 Lincoln concluded that as commander in chief he could emancipate slaves if it became militarily necessary to save the Union. But he always maintained the distinction between emancipating slaves and abolishing slavery itself. Neither he nor Congress could do the latter. When Congress required reorganized states to frame new constitutions that abolished slavery as part of the Wade-Davis Reconstruction bill, he cited the provision as one of the reasons he refused to sign it. He was not prepared “to declare a constitutional competency in Congress to abolish slavery in States.”97 That would require a constitutional amendment.

By July 1862 Lincoln finally concluded that his conciliatory policy on slavery was not bearing fruit and in fact was beginning to damage the war effort. He told Secretary of State William H. Seward and Secretary of the Navy Gideon Welles that “he had given it much thought and had about come to the conclusion that [emancipation] was a military necessity absolutely essential for the salvation of the Union.”98 As he told portrait artist Francis B. Carpenter later, “I felt that we had reached the end of our rope on the plan of operations we had been pursuing . . . .”99

The Preliminary Emancipation Proclamation of September 22, 1862 followed the pattern of prior announcements. Lincoln affirmed: “[H]ereafter, as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States and each of the States and the people thereof....” Again he urged voluntary, compensated emancipation upon border-state and southern 96 Lincoln, supra note 93, at 3286-88. 97 Abraham Lincoln, Proclamation (July 8, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3423, 3424. 98 GIDEON WELLES, 1 DIARY OF GIDEON WELLES 70 (Howard K. Beale ed., W.W. Norton & Co. 1960) (1911). 99 FRANCIS B. CARPENTER, SIX MONTHS AT THE WHITE HOUSE WITH ABRAHAM LINCOLN: THE STORY OF A PICTURE 20-21 (1866). The story, which Carpenter first told in an 1865 magazine article, may exaggerate Carpenter’s intimacy with Lincoln. But if he was merely reflecting common understandings, the attributed language certainly indicates that Lincoln had made his constitutional justification clear to the public. Carpenter also quotes Lincoln as explaining to a group of visitors in 1864, “I did not consider that I had a right to touch the ‘State’ institution of ‘Slavery’ until all other measures for restoring the Union had failed.” Id. at 76. As historian Don Fehrenbacher observed, the length of the whole quotation “casts extra doubt upon its authenticity as a reproduction of Lincoln’s words, but its substance seems credible enough.” RECOLLECTED WORDS OF ABRAHAM LINCOLN 84 (Don E. Fehrenbacher & Virginia Fehrenbacher eds., 1996). Carpenter and New York lawyer Edwards Pierrepont independently quoted Lincoln as analogizing the decision to a game of cards. Pierrepont reported him as saying, in a contemporaneous account to fellow lawyer Robert C. Winthrop, “It is my last card, and I will play it and may win the trick.” ROBERT C. WINTHROP, JR., A MEMOIR OF ROBERT C. WINTHROP 229 (2d ed. 1897); see also CARPENTER, supra, at 20-21.



unionists. But direct action to emancipate slaves in the Confederacy would be justified if the war continued into the new year. On January 1, 1863, all slaves in areas still in rebellion “shall be then, thenceforward, and forever free.”100 The Preliminary Proclamation cited congressional enactments freeing slaves captured from rebels or having run away to federal lines and pointedly instructed the military to carry them out. However, he was not proposing to abolish slavery as an institution but rather promising to emancipate individual slaves behind Confederate lines. It was clearly a wartime act. The sanction was not criminal punishment for continuing to hold persons in bondage but rather that “the executive government of the United States . . . will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons . . . in any effort they may make for their actual freedom.”101

The final Emancipation Proclamation, issued as promised on January 1, 1863, explicitly articulated the constitutional justification. He was declaring slaves behind Confederate lines free “by virtue of the power in me vested as Commander in Chief of the Army and Navy . . . in time of actual armed rebellion against the authority and Government of the United States, and as a fit and necessary war measure for suppressing” it. He reaffirmed the limited sanction “that the executive government of the United States . . . will recognize and maintain the freedom of said persons.” All along Lincoln had said that, no matter his private feelings, he would deal with slavery only as it related to preserving the Union. Hardly a word in the Proclamation’s notoriously dry language suggested otherwise. But in the penultimate paragraph, he could not forbear from affirming that he was doing “an act of justice” and invoking “the considerate judgment of mankind and the gracious favor of Almighty God.” But if it was an act of justice, he wrote in the same sentence, it was nonetheless “sincerely believed to be . . . warranted by the Constitution upon military necessity.”102

Had there been no war, his oath to preserve, protect, and defend the

100 Abraham Lincoln, Proclamation (Sept. 22, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3297, 3298. 101 Id. at 3298. 102 Abraham Lincoln, Emancipation Proclamation (Jan. 1, 1863), in 8 MESSAGES AND PAPERS, supra note 20, at 3358, 3358-60. Judge Frank J. Williams argues that Lincoln offered a different legal justification for the Emancipation Proclamation than he had for the preliminary version, arguing that the latter relied on congressional authority while the former relied on the Lincoln’s authority as commander in chief. Williams, supra note 7, at 65-66. I find no such distinction. See also ANASTAPLO, supra note 11, at 205-06, 216-18; see generally ALLEN C. GUELZO, LINCOLN’S EMANCIPATION PROCLAMATION: THE END OF SLAVERY IN AMERICA (2004) (demonstrating Lincoln’s profound concern that that emancipation be constitutionally justifiable as a necessary measure of war). Deeply opposed to slavery, Lincoln worked to “balance the integrity of ends (the elimination of slavery) with the integrity of means (his oath to uphold the Constitution and his near-religious reverence for the rule of law).” Id. at 5.


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Constitution would have obligated him to observe its strictures regarding slavery, no matter his personal feelings, he explained in another of his public letters. But it also “imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. . . . I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”103

B. Reconstruction

Lincoln dominated the Reconstruction process during the war. He

refused to sign the Wade-Davis Reconstruction bill, which detailed a fixed and rigid procedure for reconstructing state governments and restoring them to normal relations in the Union.104 By delaying the reconstruction process until loyalty oaths were taken by a number equaling fifty percent of those voting in the 1860 presidential election, the Wade-Davis bill effectively eliminated Reconstruction as a tool for breaking down southern resistance.

Lincoln preferred an ad hoc approach to establish loyal state governments as quickly as possible. He intended them to serve as rallying points for southerners willing to avow loyalty to the United States. He appointed Andrew Johnson military governor of Tennessee in 1861 and sent his name to the Senate for confirmation. Thereafter, he appointed military commanders with civilian political experience to govern occupied areas, without seeking Senate confirmation. He hectored the commanders and their civilian appointees to persuade loyal southerners to reorganize their governments and elect representatives to Congress.105 He wanted southern states to send senators and 103 Letter of Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in 7 COLLECTED WORKS, supra note 1, at 281. 104 By refusing to sign the measure, Lincoln exercised a “pocket veto” that killed it. See Herman Belz, Reconstructing the Union: Theory and Policy During the Civil War 198-243 (1969); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-1869, at 70-83 (1974). 105 See Letter from Abraham Lincoln to Benjamin F. Butler, George F. Shepley and Others (Oct. 14, 1862), in 5 COLLECTED WORKS, supra note 1, at 462; Letter from Abraham Lincoln to Ulysses S. Grant, Andrew Johnson and Others (Oct. 21, 1862), in 5 COLLECTED WORKS, supra note 1, at 470; Letter from Abraham Lincoln to Benjamin F. Butler (Nov. 6, 1862), in 5 COLLECTED WORKS, supra note 1, at 487; Letter from Abraham Lincoln to Frederick Steele, John S. Phelps and Others (Nov. 18, 1862), in 5 COLLECTED WORKS, supra note 1, at 500; Letter from Abraham Lincoln to George F. Shepley (Nov. 21, 1862), in 5 COLLECTED WORKS, supra note 1, at 504; Letter from Abraham Lincoln to Stephen A. Hurlbut (July 31, 1863), in 6 COLLECTED WORKS, supra note 1, at 358; Letter to Nathaniel P. Banks (Aug. 5, 1863), in 6 COLLECTED WORKS, supra note 1, at 364; Letter from Abraham Lincoln to Andrew Johnson (Sept. 11, 1863), in 6 COLLECTED WORKS, supra note 1, at 440. For Lincoln’s frustration with



representatives to Congress even if loyal state governments were not yet organized. The election of loyal representatives from Tennessee “would be worth more to us than a battle gained,” he urged Johnson. “How long before we can get such a vote?”106 He urged Arkansas Senator-elect William K. Sebastian, who had been expelled from the Senate at the end of his prior term for adhering to the rebellion, to seek admission as the representative of Arkansas loyalists. It would be up to the Senate to accept or reject him, Lincoln acknowledged. “Still I should feel great interest in the question,” which “may be so presented as to be one of the very greatest national importance.”107 He was elated when the House of Representatives seated two representatives from occupied Louisiana in December 1863.108

Frustrated by southern unionists’ apparent inability to start the process on their own, in December 1863 Lincoln issued a proclamation outlining a process through which they could establish state governments. He eschewed the detailed specifications that would lead him to kill the Wade-Davis bill a few months later. He promised that any government that emerged would “be recognized as the true government of the State.”109 The only requirement was that it conform to the Emancipation Proclamation. Lincoln based his Reconstruction Proclamation on his constitutional power to pardon offenses. Nowhere did he mention his powers as commander in chief.110

In the wake of Lincoln’s Reconstruction Proclamation, Louisiana, Tennessee, and Arkansas finally held state constitutional conventions and elected state officers, even as U.S. army commanders continued to exercise military authority. (In Virginia, Lincoln recognized as governor Francis H. Pierpoint, who had been selected by unionists to maintain a loyal government after the state’s secession.).111 Lincoln did the slow pace of efforts to restore loyal government in the South, see HARRIS, supra note 81, at 75-79, 97-120. 106 Letter from Abraham Lincoln to Andrew Johnson (July 3, 1862), in 5 COLLECTED WORKS, supra note 1, at 302, 303. Lincoln wrote similarly to his military governor in occupied North Carolina. Letter from Abraham Lincoln to Edward Stanly (Sept. 29, 1862), in 5 COLLECTED WORKS, supra note 1, at 445. 107 Letter from Abraham Lincoln to Stephen A. Hurlbut, supra note 105, at 358-59. Hurlbut and Sebastian would have understood this language to mean that Lincoln would use his influence to secure Sebastian’s admission. Lincoln likewise urged the election of a loyal representative from the occupied area of Virginia. Letter from Abraham Lincoln to John A. Dix (Oct. 26, 1862), in 5 COLLECTED WORKS, supra note 1, at 476, 476-77. 108 HARRIS, supra note 81, at 78-83. 109 Abraham Lincoln, Proclamations (Dec. 8, 1863), in 8 MESSAGES AND PAPERS, supra note 20, at 3414, 3415. 110 Id. at 3414-16. The proclamation specified that those who took an oath of future loyalty and personal acquiescence in the provisions of the president’s proclamations regarding slavery could participate, and that the process could begin whenever that number equaled the number of voters in the 1860 presidential election. The new government had to comport with the aforementioned oath. 111 For wartime Reconstruction of Arkansas, Louisiana, Tennessee, and Virginia, see BELZ,


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everything in his power to persuade Congress to admit senators and representatives from these putative governments, barely failing to get his way in the winter of 1865.112 Almost to the end, Lincoln saw Reconstruction in terms of ending Confederate military opposition. “[A]ll he wanted of us was to defeat the opposing armies and to get the men composing the Confederate armies back to their homes . . . ,” he told William Tecumseh Sherman as the war wound towards its end in March 1865.113 Even the day before he died, he mused to the Cabinet that he was perhaps going too fast on Reconstruction now that Confederate forces had surrendered.114

IV. LINCOLN AS DESPOT: CONTEMPORARY CRITICS

All in all, Lincoln’s course towards Reconstruction was an

impressive exercise of inherent presidential power—a “breathtaking assertion of presidential prerogative,” as James M. McPherson described it.115 The same could be—and has been—said about each of his actions. Political scientists have identified Lincoln as the embodiment of the “prerogative presidency”—personifying the notion that the chief executive has wide-ranging power to act in the national interest and the public welfare.116

Many contemporaries were stunned by Lincoln’s assertion of presidential prerogatives. Democrats immediately decried “executive usurpation.”117 “Laws are made by proclamation without the concurrence of Congress, and are executed without the action of the judiciary,” exclaimed the governor of New Jersey, the eminent lawyer

supra note 104; THOMAS S. STAPLES, RECONSTRUCTION IN ARKANSAS, 1862-1874, at 9-43 (1923); PEYTON MCCRARY, ABRAHAM LINCOLN AND RECONSTRUCTION: THE LOUISIANA EXPERIMENT (1978); PETER MASLOWSKI, TREASON MUST BE MADE ODIOUS: MILITARY OCCUPATION AND WARTIME RECONSTRUCTION IN NASHVILLE, TENNESSEE, 1862-1865 (1978); RICHARD LOWE, REPUBLICANS AND RECONSTRUCTION IN VIRGINIA, 1856-1870, at 10-24 (1991); CHARLES HENRY AMBLER, FRANCIS H. PIERPOINT: UNION WAR GOVERNOR OF VIRGINIA AND FATHER OF WEST VIRGINIA 96-276 (1937). 112 BENEDICT, supra note 104, at 84-97; MCCRARY, supra note 111, at 271-304. 113 WILLIAM T. SHERMAN, 2 MEMOIRS OF GENERAL WILLIAM T. SHERMAN 326 (1875). 114 Journal Entry of Salmon P. Chase (Apr. 15, 1865), in 1 THE SALMON P. CHASE PAPERS 530 (John Niven ed., 1993). 115 MCPHERSON, supra note 17, at 209. 116 Abraham Lincoln, Letter to A.G. Hodges (April 4, 1864) reprinted in JAMES P. PFIFFNER & ROGER H. DAVIDSON, UNDERSTANDING THE PRESIDENCY 35-37 (2d ed. 2000). KOENIG, supra note 7, at 11, cites Lincoln in a discussion of “Presidential Power as Prerogative.” Richard Pious presents “Lincoln’s Constitutional Dictatorship” as the introductory case to his chapter The Presidential Prerogative, in THE PRESIDENCY, supra note 7, at 81-83. 117 Rep. Clement L. Vallandigham, Speech in the House of Representatives: Executive Usurpation (July 10, 1861), available at http://www.angelfire.com/pa/sergeman/defenders/civilwar/execusurp.html.



Joel Parker.118 Calling out volunteers to serve in an enlarged army without congressional authorization, initiating a blockade of southern ports on his own authority, arresting citizens and holding them in defiance of writs of habeas corpus, suppressing critical newspapers and holding citizens for voicing opinions, emancipating slaves on a claim of military necessity, encouraging citizens of southern states to replace their governments—all smacked of despotism, opponents charged. “A modern invention termed the ‘war power,’ is made to override the explicit mandates of the organic law,” Parker lamented. “Free press, free speech, trial by jury, and habeas corpus, the corner-stones of our system of government, have been undermined and swept away.”119 Former Supreme Court justice Benjamin R. Curtis observed grimly:

It must be obvious to the meanest capacity, that if the President of the United States has an implied constitutional right, as commander-in-chief of the army and navy in time of war, to disregard any one positive prohibition of the Constitution, or to exercise any one power not delegated to the United States by the Constitution, because, in his judgment, he may thereby ‘best subdue the enemy,’ he has the same right, for the same reason to disregard each and every provision of the Constitution . . . . The necessary result of this interpretation of the Constitution is, that, in time of war, . . . every private and personal right of individual security against mere executive control, and every right reserved to the States or the people, rests merely upon executive discretion.120

The administration’s arbitrary measures, lawyer George Ticknor Curtis warned, were “sure indications of that weakness which always precedes a relapse into despotism.”121 They were promulgated, wrote an Indiana Democratic pamphleteer, by “men who hate slavery, more than they love the Constitution, and prefer that slavery and the Constitution shall die together rather than that both shall live.”122

In the circuit court case of Ex parte Merryman, Chief Justice Roger Taney denied that the president’s obligation to enforce the laws implied any authority to act on his own. His obligation to enforce the laws imposed only “a duty to come in aid of the judicial authority” if it were resisted. “[I]n exercising this power,” Taney held, the president “acts in subordination to judicial authority, assisting it to execute its process and 118 Campaign Document, No. 6, Speech of Governor Parker, at Freehold, N.J.: Our National Troubles—Their Causes and the Remedy (Aug. 20, 1864), in HANDBOOK OF THE DEMOCRACY FOR 1863 & ’64, at 2 [hereinafter HANDBOOK OF THE DEMOCRACY]. 119 Id. at 2. 120 BENJAMIN R. CURTIS, EXECUTIVE POWER (1862), reprinted in 1 UNION PAMPHLETS OF THE CIVIL WAR, 1861-1865, at 461, 463 (Frank Freidel ed., Harvard University Press 1967). 121 Campaign Document No. 7, Hon. George Ticknor Curtis, On Constitutional Liberty (1864), in HANDBOOK OF THE DEMOCRACY, supra note 118, at 6. 122 FACTS FOR THE PEOPLE! RELATING TO THE PRESENT CRISIS, BY A CITIZEN OF INDIANA (1862), reprinted in 1 UNION PAMPHLETS OF THE CIVIL WAR, supra note 120, at 404, 424.


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enforce its judgments.”123 Four justices, including Taney, dissented from the Court’s decision upholding Lincoln’s blockade in The Prize Cases. The insurrection Lincoln faced in 1861 did not create a state of war that would justify blockades and the seizure of property under them, the dissenters insisted. The Constitution delegated the power to declare such a state of war only to Congress. Until Congress had affirmed the existence of a war in August, 1861, Lincoln could not order a blockade, and no seizures before that time were legal. He was limited to suppressing the rebellion with the tools Congress had provided—the Militia Acts of 1792, 1795, and 1807. These, the dissenters insisted, “furnishe[d] the most ample means of repelling attacks from abroad or suppressing disturbances at home until the assembling of Congress.” Congress could then “bring into operation the war power, and thus change the nature and character of the contest.” Only then would it be carried on “under the law of nations, and the Acts of Congress as war measures, with all the rights of war,” including the right to impose a blockade.124

If the right to challenge one’s detention was to be suspended, Samuel J. Tilden urged, “it was absolutely necessary, as well for the safety of the citizen as for the convenience and fair action of the government, that the whole thing should have been defined by legislative action.”125 It was a “heresy” to argue that things could be done under the “war power” that could not be done in time of peace, “as if we had one Constitution for a state of peace and another Constitution for a state of war,” George Ticknor Curtis sputtered.126 Lincoln’s claim to a broad “war power” to save the life of the nation meant that “the President . . . has but to involve the people in a war, with any body, ostensibly to maintain the Constitution, and he can then pervert that war, to subvert that Constitution,” House Democratic leader James Brook declaimed. “This War Power is a new name for a very old thing. It is the new name of Despotism . . . .”127

123 Ex parte Merryman, 17 F. Cas. 144 at 149 (C.C.D. Md. 1861) (No. 9,487). 124 The Prize Cases, 67 U.S. (2 Black) 635, 692 (1863) (Nelson, J., dissenting). 125 Samuel Tilden, Address to the Society for the Diffusion of Political Knowledge (Feb. 13, 1863), in 1 PAPERS FROM THE SOCIETY FOR THE DIFFUSION OF POLITICAL KNOWLEDGE, THE CONSTITUTION: ADDRESSES OF PROF. MORSE, MR. GEO. TICKNOR CURTIS, & MR. S.J. TILDEN, AT THE ORGANIZATION 7 (1863) [hereinafter PAPERS FROM THE SOCIETY]. 126 George Ticknor Curtis, Address to the Society for the Diffusion of Political Knowledge (Feb. 13, 1863), in 1 PAPERS FROM THE SOCIETY, supra note 125, at 8. 127 JAMES BROOKS, THE HON. JAMES BROOKS’ SPEECH, BEFORE THE UNION DEMOCRATIC ASSOCIATION, 932 BROADWAY, TUESDAY EVENING, DECEMBER 30, 1862, at 9 (N.Y. Evening Express 1863). The speech was also published as JAMES BROOKS, SPEECH OF THE HON. JAMES BROOKS, AT 932 BROADWAY, TUESDAY EVENING, DECEMBER 30, 1862, in 3 PAPERS FROM THE SOCIETY, supra note 125, at 11.



V. LINCOLN AND “CONSTITUTIONAL DICTATORSHIP”: LESSONS FOR TODAY

Historians and political scientists have almost unanimously

rejected the idea that Lincoln was a “despot.” He exercised, rather, a “constitutional dictatorship,” claiming emergency power to act outside the Constitution, softened by his personal magnanimity and restraint and his commitment to democracy.128 There was, James G. Randall observed in his classic essay Lincoln in the Role of Dictator, a “real uncongeniality” between Lincoln’s aggressive exercise of power “and the type of man he was.”129 But Randall also understood that “to say that Lincoln regretted” having to take extra-constitutional measures “and that he was solicitous to preserve constitutional restraints, is not to refute the fact” that he had assumed dictatorial powers.130

But most historians and recent legal analysts consider the “constitutional dictatorship” metaphor inapt. As Phillip Shaw Paludan has observed, “[W]hat strikes modern historians is how respectful Lincoln was of constitutional limitations . . . .”131 First, Lincoln limited his claims strictly to conditions precipitated by the war, involving his duty to preserve the Constitution and enforce the laws in the face of opposition. As for the ordinary, peace-time business of the nation, he adhered to his Whig views of the presidential role. “According to my political education, I am inclined to believe that the people in the various sections of the country should have their own views carried out through their representatives in Congress . . . .” he told a Pittsburg audience as he touched on the controversial issue of protective tariffs.132 In the draft he had prepared for his talk, he had gone into more detail: The Constitution authorized the president to recommend measures to Congress and to veto those he thought improper. He knew there were also “certain indirect influences” by which he could affect congressional action. “My political education strongly inclines me against a very free

128 See the sources cited in note 7, supra. 129 Randall, supra note 7, at 237. 130 Id. at 248. 131 Phillip Shaw Paludan, “Dictator Lincoln”: Surveying Lincoln and the Constitution, 21 MAG. HIST. 8, 10 (2007). See HERMAN J. BELZ, Lincoln and the Constitution: The Dictatorship Question Reconsidered, in ABRAHAM LINCOLN, CONSTITUTIONALISM, AND EQUAL RIGHTS IN THE CIVIL WAR ERA 17 (1998); HERMAN J. BELZ, ABRAHAM LINCOLN AND AMERICAN CONSTITUTIONALISM, reprinted in ABRAHAM LINCOLN, CONSTITUTIONALISM, AND EQUAL RIGHTS IN THE CIVIL WAR ERA, supra at 72; Michael Les Benedict, The Constitution of the Lincoln Presidency and the Republican Era, in THE CONSTITUTION AND THE AMERICAN PRESIDENCY 45 (Martin L. Fausold & Alan Shank eds. 1991); FARBER, supra note 11; DON E. FEHRENBACHER, The Paradoxes of Freedom, in LINCOLN IN TEXT AND CONTEXT: COLLECTED ESSAYS 129 (1987); WILLIAMS, supra note 11, passim. 132 ABRAHAM LINCOLN, SPEECH AT PITTSBURGH, PENNSYLVANIA (Feb. 15, 1861), reprinted in 4 COLLECTED WORKS, supra note 1, at 210, 213.


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use of any of these means, by the Executive, to control the legislation of the country,” he had written. “As a rule, I think it better that congress should originate, as well as perfect its measures, without external bias.”133

His actions reflected his beliefs. Even where his edict as commander in chief clearly ran, he made his willingness to defer to Congress clear. After U.S. forces occupied New Orleans and suppressed Confederate courts in 1861, business people pressed him to provide military courts to enable them to collect debts and enforce contracts. “I have thus far declined to do it, . . . because I have been unwilling to go beyond the pressure of necessity in the unusual exercise of power. But the powers of Congress, I suppose, are equal to the anomalous occasion,” he told the House and Senate. He urged them to come up with a plan to administer justice temporarily in all territories to be occupied by federal forces.134 Only after ten months of congressional inaction, did he finally create the courts by an executive order.135

While Lincoln was completely immersed in the war, meeting regularly with Secretary of War Stanton at the War Department, one could barely find an administration policy in other areas.136 Treasury Secretary Salmon P. Chase regularly complained about Lincoln’s failure to consult with the Cabinet on such matters.137 With the war’s end, his war powers would terminate, and he would act within the limited framework of his Whig conception of the presidency. If Confederates simply laid down their arms, they could have peace. “If questions should remain, we would adjust them by the peaceful means of legislation, conference, courts, and votes,” he urged. “The Executive power itself would be greatly diminished by the cessation of actual war.”138

Second, Lincoln never lost the striking commitment to the rule of law that he had articulated as a young man at the Springfield Young Man’s Lyceum. He was, as Judge Williams has pointed out, as much

133 Id. at 214. 134 Lincoln, supra note 80, at 3251. 135 Abraham Lincoln, Executive Order Establishing a Provisional Court in Louisiana (Oct. 20, 1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3323, 3323-24. 136 DAVID H. DONALD, Abraham Lincoln: Whig in the White House, in LINCOLN RECONSIDERED: ESSAYS ON THE CIVIL WAR ERA 187 (1956). 137 See, e.g., Letter from Salmon P. Chase to Charles P. McIlvaine (Jan. 25, 1863), in 3 THE SALMON P. CHASE PAPERS, supra note 114, at 372, 372-73; Letter from Salmon P. Chase to James Watson Webb (Nov. 7, 1863), in 4 THE SALMON P. CHASE PAPERS, supra note 114, at 179, 179-80. Other members of the Cabinet echoed Chase’s complaint. See DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 525-27 (2005). 138 Abraham Lincoln, Fourth Annual Message to Congress (Dec. 6, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3444, 3455.



“attorney-in-chief” as commander in chief.139 He consistently tied his actions to legal and constitutional principles. And he adhered to them scrupulously. He had not issued his Preliminary Emancipation Proclamation until convinced it was a military necessity, and he had tailored the final proclamation closely to its constitutional justification. Chase and other radical Republicans urged Lincoln to extend the Proclamation’s operation to rebel territory that federal forces already occupied as of January 1, 1863. Lincoln would not do it. “The original proclamation has no constitutional or legal justification, except as a military measure.”140 If he took the step the radicals advocated, “must I not do so, without the argument of military necessity, and so, without any argument, except the one that I think the measure politically expedient, and morally right? Would I not thus give up all footing upon constitution or law? Would I not thus be in the boundless field of absolutism?”141 When General Benjamin F. Butler ordered residents of Norfolk, in occupied Virginia, to vote on instituting a program of municipal improvements, Lincoln reproved him. If he needed to take action to prevent disease or safeguard his forces, he could undertake a wide range of municipal improvements. “But you should do so on your own avowed judgment of a military necessity, and not seem to admit that there is no such necessity, by taking a vote of the people on the question. Nothing justifies the suspending of the civil by the military authority, but military necessity . . . .”142

Analysts suggesting that Lincoln believed he could act outside legal and constitutional limitations cite a few instances in which he seemed to make such a claim. But read in light of his constantly reiterated arguments that he was acting within the law and exercising constitutionally delegated authority, his words can be understood differently. His clearest articulation of an emergency power to act outside the law was his query in response to criticism of his suspension of the privilege of the writ of habeas corpus—“Are all the laws but one to go unexecuted . . . lest that one be violated?”143 But he immediately followed the query with an assurance that “it was not believed that this question was presented. It was not believed that any law was violated.”144 Lincoln was a lawyer. Lincoln the lawyer often threw out

139 FRANK J. WILLIAMS, Abraham Lincoln: Commander in Chief or “Attorney in Chief”?, in LINCOLN AND HIS COUNTERPARTS (Charles Hubbard ed., 1999), reprinted in JUDGING LINCOLN, supra note 11, at 34. 140 Letter from Abraham Lincoln to Salmon P. Chase (Sept. 2, 1863), in 6 COLLECTED WORKS, supra note 1, at 428, 428-29. 141 Id. at 428-29. 142 Letter from Abraham Lincoln to Benjamin F. Butler (Aug. 9, 1864), in 7 COLLECTED WORKS, supra note 1, at 487, 487-88. 143 Lincoln, supra note 24, at 3226. 144 Id.


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an extreme argument, which he took pains not to elaborate, in order to make his real argument more palatable. His rhetorical question was an example of the technique. A bit later, Lincoln acknowledged that he had taken some actions “without any authority of law,”145 but what he clearly meant, given the context, was that he had acted without statutory authority. He articulated the proposition that “measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution.”146 That, by its own terms, is an argument for the legality of the measures, not an argument that their legality was irrelevant.

Third, Lincoln never came close to claiming the untrammeled authority inherent in the term “dictator.” In his classic argument that Lincoln had set an example of “constitutional dictatorship,” Clinton Rossiter adopted the Webster Dictionary definition of dictator as a person “exercising . . . absolute authority in government.”147 “Absolute authority,” of course, means authority over which there is no control. Lincoln never claimed or exercised any such authority. Lincoln argued that the obligation to preserve the Constitution, enforce the laws, and act as commander in chief of the armed forces implied a range of presidential powers. He never claimed that the delegation of these powers operated to limit the powers the Constitution had delegated to Congress. As Lincoln’s resident expert on the war powers, Solicitor of the War Department William Whiting, made clear, “[T]he power of Congress to pass laws on the subjects expressly placed in its charge by the terms of the constitution cannot be taken away from it, by reason of the fact that the President . . . also has powers, equally constitutional, to act upon the same subject-matters.”148 His request that the special session of Congress assembling July 4, 1861 ratify his actions of the prior months was an acknowledgment of its ultimate authority over the steps he had taken.149 He left “entirely to the better judgment of Congress” whether to enact legislation governing the suspension of the writ of habeas corpus.150 When Congress did so in 1863, Lincoln followed the terms of the act. His administration cooperated with the aggressive Joint Congressional Committee on the Conduct of the War, which questioned strategy, tactics, and the assignments of military commanders. The committee trenched closely upon authority the president could have claimed was his alone. “[T]his improvised vigilant committee . . . is a marplot, and its greatest purpose seems to be to 145 Lincoln, supra note 27, at 3280. 146 Letter from Abraham Lincoln to Albert G. Hodges, supra note 103, at 281. 147 ROSSITER, supra note 7, at 4. 148 WILLIAM WHITING, WAR POWERS UNDER THE CONSTITUTION OF THE UNITED STATES 27 (Boston, Little, Brown & Co. 1864). 149 See supra text accompanying note 24. 150 Lincoln, supra note 24, at 3226.



hamper my action and obstruct the military operations,” Lincoln complained.151 Yet not once did Lincoln claim an executive privilege to withhold information from it.152

Lincoln claimed only a concurrent power with Congress to emancipate the slaves in order to suppress the rebellion. He had signed a Confiscation Act that seized and freed the slaves of rebels, and he had specifically relied upon it to bolster his own authority in the Preliminary Emancipation Proclamation.153 What he did deny, both to himself and to Congress, was the power to abolish slavery as an institution. Whiting explained the “distinction between emancipating or confiscating slaves, and abolishing the laws which sustain slavery” thusly: The confiscation or appropriation to a public use of all the horses now in Massachusetts “would change the legal title to these horses,” but “it would not alter the laws of Massachusetts as to personal property; nor would it deprive our citizens of the legal right to purchase and use other horses.”154 Short of a constitutional amendment, the federal government simply had no constitutional authority to do more. When Congress included provisions that abolished slavery itself in the Wade-Davis bill, Lincoln expressly stated that one reason for his refusal to sign was that he was unwilling to acknowledge its right to do so.155

Lincoln and the Republican majority in Congress differed most radically over the issue of Reconstruction. Yet Lincoln never denied

151 WARD HILL LAMON, RECOLLECTIONS OF ABRAHAM LINCOLN, 1847-1865, at 183 (Dorothy Lamon Teillard ed., 1911). 152 Hans L. Trefousse, The Joint Committee on the Conduct of the War: A Reassessment, 10 CIVIL WAR HIST. 5 (1964); BRUCE TAP, OVER LINCOLN’S SHOULDER: THE COMMITTEE ON THE CONDUCT OF THE WAR (1998); Herman Wolkinson, Demands of Congressional Committees for Executive Papers, 10 FED. BAR J. 103 (1949). Wolkinson reported that Lincoln refused a Senate request for copies of messages from Fort Sumter in March 1861. Id. at 148. However, the Senate requested the papers only if compatible with the national interest, and Lincoln replied that he did not feel it would be so at that time. Abraham Lincoln, Special Message to the Senate (Mar. 26, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3213, 3213-14. Lincoln gave a similar reply to a similar request from the House for papers related to the arrest of the police commissioners of Baltimore, Maryland in April 1861. Abraham Lincoln, Special Message to the House of Representatives (July 27, 1861), in 8 MESSAGES AND PAPERS, supra note 20, at 3234. 153 See supra text accompanying notes 92, 95, and 96. 154 WHITING, supra note 148, at ii. 155 Lincoln, supra note 97, at 3424. In his diary, Lincoln’s secretary John Hay recorded Lincoln as telling congressmen that although he could emancipate the slaves by proclamation, Congress could not do the same. “I may in an emergency do things on military grounds which cannot be done constitutionally by Congress,” Hay quoted Lincoln as saying. LINCOLN AND THE CIVIL WAR IN THE DIARIES AND LETTERS OF JOHN HAY 204 (Tyler Dennett, ed., 1939); 9 NICOLAY & HAY, supra note 27, at 120. Analysts have cited this statement as an indication of the “breathtaking assertion of presidential prerogative” that characterized Lincoln’s administration. MCPHERSON, supra note 17, at 209. But Hay almost certainly misquoted what Lincoln said. He was not exercising an “emergency power” but a “war power.” And, as noted, he had recognized Congress’s right to do the same on several occasions. What Lincoln had oft-stated was that slaves could be emancipated under the “military power” but that slavery could not be abolished except by constitutional amendment.


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Congress’s final authority. He exercised his undoubted right to refuse to sign the Wade-Davis Reconstruction bill, killing it with a “pocket veto.” He did not suggest that he considered the measure beyond congressional authority in his proclamation explaining the reasons why he withheld his signature. Instead, he explained that he did not wish to commit the nation to any particular plan, and especially that he did not want to set aside the free state constitutions and governments already established under his auspices in Arkansas and Louisiana.156

Lincoln’s restraint is manifest when one compares his course on Reconstruction with that of his successor, the pugnacious Andrew Johnson. Unlike Lincoln, Johnson claimed the sole power as commander in chief to set terms for Reconstruction and to decide when peace had been restored. He used his authority over the army to subvert congressional reconstruction legislation. He and his Cabinet ignored laws requiring test oaths of government appointees and refused to enforce the Confiscation Acts. He assailed Congress bitterly, equating its leaders with the leaders of the secession movement. His course threatened to bring Reconstruction to a standstill and raised ominous possibilities of a crisis in the upcoming presidential and congressional elections of 1868. The looming crisis abated only with his impeachment.157

In contrast, Lincoln only once declared that he would refuse to carry out an act of Congress. He would not retract or modify the Emancipation Proclamation nor return to slavery anyone free by its terms. “If the people should, by whatever mode or means, make it an Executive duty to reenslave such persons, another, and not I, must be their instrument to perform it.”158 Even here, Lincoln’s declaration reads more like a promise to resign than to defy Congress or the people.

Finally, there was Lincoln’s famous commitment to democracy. It is a staple of the literature that any of Lincoln’s excesses were mitigated by this democratic commitment. “The theme of government by the people,” Don E. Fehrenbacher has written, runs “like a golden thread across the entire fabric of Lincoln’s constitutional thought.”159 But Lincoln’s commitment to democracy meant more than just conceding the right of the people to choose new leaders. In the world of the 1860s, Americans had not yet delegated to the Supreme Court of the United States the primary responsibility for enforcing their Constitution. As a 156 Lincoln, supra note 97, at 3423-24. 157 For detailed accounts, see MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973) and HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT: ANDREW JOHNSON, THE BLACKS, AND RECONSTRUCTION (1975). 158 Lincoln, supra note 138, at 3456. 159 DON E. FEHRENBACHER, Lincoln and the Constitution, in LINCOLN IN TEXT AND CONTEXT, supra note 131, at 126. See also, e.g., BELZ, supra note 131, at 33-34; Randall, supra note 7, at 251-52.



number of recent studies have shown, that responsibility remained with the people themselves.160 The Constitution was not simply what the courts said it was. Politicians, judges, pamphleteers, newspaper editors, all had a say. Lincoln knew that “he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”161 Like most Americans, Lincoln saw campaigns and elections as the method by which the people had chosen among the rival constitutional philosophies presented by Federalists and Jeffersonian Republicans, Democrats and Whigs, southern Unionists and Fire-Eaters, Republicans and Democrats. He considered the Union unbroken, he explained in his Inaugural Address, and he would enforce its laws under that premise “unless my rightful masters, the American people, shall withhold the requisite means, or in some authoritative manner, direct the contrary.”162

The constitutional expositions in his public letters and official messages demonstrated his understanding that, in the end, the Constitution would be interpreted through what may be called constitutional politics. He wrote them because he knew that he could not act on his convictions of presidential power unless the people of the North sustained him. A scholar has observed that “his pen . . . became his sword, arguably the most powerful weapon of his presidency.”163 Lincoln worshippers attribute Lincoln’s restraint in exercising the broad powers he claimed to his character. But there were stronger constraints than that. “While the people retain their virtue and vigilance no Administration by any extreme of wickedness or folly can very seriously injure the Government in the short space of four years,” Lincoln had tried to assure southerners in his first inaugural address.164 Near the end of the conflict he told southerners that if they simply stopped fighting, the war would immediately cease. He would not be able to continue it as a justification for further exercises of presidential power if he wanted to. “The loyal people would not sustain or allow it.”165 160 Michael Les Benedict, The People Themselves: The Constitutional Responsibility of the American People, 2007 DOSHISHA AM. STUDIES 91; LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Gerald Leonard, Party as a “Political Safeguard of Federalism”: Martin Van Buren and the Constitutional Theory of Party Politics, 54 RUTGERS L. REV. 221 (2001). 161 Abraham Lincoln, First Debate with Stephen A. Douglas at Ottawa, Illinois (Aug. 21, 1858), reprinted in 3 COLLECTED WORKS, supra note 1, at 1, 27. 162 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3206, 3208. 163 Douglas L. Wilson, Lincoln the Persuader, 75 AM. SCHOLAR 31, 36 (2006). See Daniel W. Hamilton, Popular Constitutionalism in the Civil War: A Trial Run, 81 CHI.-KENT L. REV. 953, 956-65 (2006) (describing the way Lincoln and others in his administration sought to mold popular opinion on constitutional issues). 164 Lincoln, supra note 162, at 3212. 165 Lincoln, supra note 138, at 3455.


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Lincoln’s Democratic and Conservative opponents likewise appealed to Americans’ commitment to constitutionalism in their campaign to oust Republicans from power. They organized the Society for the Diffusion of Political Knowledge specifically to educate the public of the North about the constitutional issues at stake in the way Republicans were prosecuting the war. The Society’s first paper circulated the speeches given at its founding. It was entitled simply The Constitution. “When a party in Power violates the Constitution and Disregards State-Rights, Plain Men Read Pamphlets,” the Society emblazoned hopefully on the cover.166 Nineteen more papers of the Society are bound with Democratic documents in the Ohio State University Library. All challenge the constitutionality of Lincoln’s wartime policies towards civil liberties and emancipation.167 The Democratic party itself published other campaign documents challenging the Lincoln administration’s infringements of civil liberty and state rights.168 Local Democrats paid for publications like House leader James Brooks’s speech to the New York Union Democratic Association in December 1862. The cover indicated the theme: “Hold Fast to the Constitution.”169 Other important arguments were published more or less independently, including ex-Supreme Court Justice Benjamin R. Curtis’s trenchant criticism Executive Power.170

If Democrats failed to convince northerners that only a peaceful effort to restore the Union was compatible with maintaining civil liberty, it was largely because Lincoln understood the limits of what Americans would tolerate. He could not extend the Emancipation Proclamation to areas occupied by federal troops before January 1, 1863, he told radicals. To do so would be to “give up all footing upon constitution or law” and “be in the boundless field of absolutism.”

166 The cover is reprinted in 1 UNION PAMPHLETS OF THE CIVIL WAR, supra note 120, at xiv. 167 See generally HANDBOOK OF THE DEMOCRACY, supra note 118 (campaign documents and papers from the Society for the Diffusion of Public Knowledge and other miscellaneous papers). See also Opposition to the Administration, 17 THE CAMBRIDGE HISTORY OF ENGLISH AND AMERICAN LITERATURE, American—Later National Literature, Part II, ch. 21, § 15 (2000), available at http://www.bartleby.com/227/1415.html. 168 A number are included in the HANDBOOK FOR THE DEMOCRACY, supra note 118. Document after document makes constitutional arguments against administration policies. See, e.g., Campaign Document, No. 6, Speech of Governor Parker, supra note 118; Curtis, supra note 121; Campaign Document, No. 8, Speech of Hon. Edgar Cowan, of Pa., In the Senate of the United States (June 27, 1864), in HANDBOOK OF THE DEMOCRACY, supra note 118; Campaign Document, No. 10, Address of Hon. George Ticknor Curtis, at Philadelphia (Sept. 30, 1864), in HANDBOOK OF THE DEMOCRACY, supra note 118; Campaign Document, No. 21, Speech of Governor Seymour, at Philadelphia in HANDBOOK OF THE DEMOCRACY, supra note 118; Document No. 13, Mr. Lincoln’s Arbitrary Arrests: The Acts which the Baltimore Platform Approves, in HANDBOOK OF THE DEMOCRACY, supra note 118. 169 BROOKS, supra note 127. The exhortation on the cover did not appear in the version published by the Society for the Diffusion of Political Knowledge. 170 CURTIS, supra note 120.



“Could this pass unnoticed?” he asked. “Could it fail to be perceived that without any further stretch, I might . . . change any law in any State?” It was not court intervention he feared. “Would not many of our friends shrink away appalled? Would it not lose us the elections, and with them, the very cause we seek to advance?”171

CONCLUSION

Writing before the Supreme Court achieved its complete

prominence as expositor of the Constitution, James G. Randall saw the real source of the constitutional constraints on Lincoln clearly. “In a legal study of the war the two most significant facts are perhaps these,” he wrote: “the wide extent of the war powers; and, in contrast to that, the manner in which men in authority were controlled by the American people’s underlying sense of constitutional government.”172 Perhaps no insight from a study of Lincoln’s presidency is more important. It was easier to see in the 1860s, when Americans did not yet defer to the Supreme Court as the ultimate guardian of the Constitution, as so many do today. But it is still true that in the end, it is not the American government but the American people whose commitment to constitutional liberty is tested by war. We were lucky to have a Lincoln as president during our nation’s greatest crisis, but no one knew better than he that liberty would survive the threat posed by his own strong measures because the people willed it. He was not worried, he told doubting Democrats:

that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.173 But now we know that sick people can become addicted to the

drugs that cure them. And possibly modern Americans will become used, if not addicted, to the limits a “war on terror” has imposed on civil liberties. But if so, it will not only be because a Bush is not a Lincoln. It will not be because a president has failed us. It will be because we have failed ourselves.

171 Letter from Abraham Lincoln to Salmon P. Chase, supra note 140, at 429. 172 J.G. Randall, The Rule of Law Under Lincoln, in LINCOLN: THE LIBERAL STATESMAN 118, 133 (1947). 173 Letter from Abraham Lincoln to Erastus Corning and Others, supra note 73, at 267.

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