WHAT WOULD LINCOLN DO?

Did Lincoln Violate the Constitution?: A Review of Daniel Farber's Lincoln's Constitution (RODGER D. CITRON, July 18, 2003, Find Law)

Farber...examines Lincoln's record with respect to civil liberties. Again, he is supportive of many of the president's contested actions. And he concludes that "[m]any of the acts denounced as dictatorial - the suspension of habeas at the beginning of the war, emancipation, military trials of civilians in contested or occupied territory - seem in retrospect to have reasonably good constitutional justifications under the war power."

Farber does acknowledges that, on occasion, the actions of Lincoln or the military were excessive. As examples, he cites measures to suppress free speech - and in particular, a case in which a gentleman opposed to the Civil War was convicted and sentenced to death for what may have been no more than associating with another individual who wanted to take armed action against the Union. After the war, in Ex Parte Milligan, the Supreme Court granted the gentleman's habeas corpus petition. [...]

Lincoln's Constitution concludes with a brief discussion of the current relevance of the constitutional questions surrounding Lincoln's Presidency.

Farber believes that Lincoln's conduct of the war demonstrates the need for a strong federal government in wartime. But he also contends that it is strong evidence that we need not circumvent the rule of law, or ignore constitutional protections, in dealing with such a crisis.

During our greatest constitutional crisis, Farber demonstrates, the nation was extremely fortunate to have Lincoln as its leader. He recognized the significance of the challenge posed by secession; acted decisively in responding to it; and nevertheless maintained a sense of perspective about the proper institutional role of the presidency.

In the midst of the war on terrorism, at least one disputed issue in the Civil War - how to balance individuals' constitutional rights against governmental claims of national security - remains quite germane. Regardless of one's political affiliation, it is undisputed that Lincoln set the bar rather high for his successors.

Without being too cynical, it seems safe to say that had the South won the Civil War history might render a different verdict on Lincoln's actions. Similarly, if the war on terror succeeds and George W. Bush doesn't suspend the next election and impose fascism, one would think that even actions that may seem constitutionally dicey to some--keeping prisoners at Guantanamo or trying them before military tribunals--will be seen to "have reasonably good constitutional justifications under the war power". Indeed, given that FDR is forgiven the internment of Japanese-Americans during WWII, an act which had absolutely no good constitutional justification, we can be certain Gitmo will be accepted. The question this raises is whether we're all constitutional relativists when it comes to actions we desire, or is it necessary for the continuance of the Republic, when threatened, to allow a little leeway in the Constitution that we would not grant in times of peace? Posted by Orrin Judd at July 27, 2003 7:55 AM