Prerogative and the rule of law in John Locke and the Lincoln presidency

Review of Politics

Volumn 67, Issue 1, 2005, Pages 77-111

  Mattie, Sean ^a  

^a NONE

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EID: 34248033422     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670500043333     Document Type: Article

References (70)

1. Padilla v. Rumsfeld, U.S. Court of Appeals for the Second Circuit, No.03-2235 (2003).
2. Rumsfeld v. Padilla, U. S. Supreme Court, No.03-1027 (2004).
3. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988).
4. (Herein cited by the standard section (§) numbering).
5. Edward Corwin, The President: Office and Powers, 1787 - 1948, 3rd rev. ed. (New York: New York University Press, 1948), pp. 15-16
6. Larry Arnhart, "The 'God- Like Prince': John Locke, Executive Prerogative, and the American Presidency," 9 Presidential Studies Quarterly (1979): 121-131
7. Robert Sdgliano, "The President's 'Prerogative Power/" in Inventing the American Presidency, ed. Thomas E. Cronin (Lawrence, KS: University Press of Kansas, 1989), pp. 236-53
8. Daniel P. Franklin, Extraordinary Measures: The Exercise of Prerogative Powers in the United States (Pittsburgh: University of Pittsburgh Press, 1991), pp. 41-69
9. Mark J. Rozell, "Executive Prerogative: Abraham Lincoln and American Constitutionalism," in Abraham Lincoln: Contemporary: An American Legacy, ed. Frank J. Williams and William D. Pederson (Campbell, CA: Savas Woodbury Publishers, 1995), pp. 144-47
10. Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (New York: Fordham University Press, 1998), p. 27
11. George Thomas, "As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government," 30 Presidential Studies Quarterly (2000): 537-551
12. Arnhart, "The 'God-Like Prince/" p. 125. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Modern Executive Power (Baltimore, MD: Johns Hopkins University Press, 1993), pp. 247-78.
13. In this way, the article also seeks to supplement studies of Lincoln and executive power that seek explanation primarily or only in his speeches. Arnhart, "The 'God-Like Prince'"; Robert K. Faulkner, "Lincoln and the Constitution," in The Revival of Constitutionalism, ed. James Muller (Lincoln, NE: University of Nebraska Press, 1988), pp. 172-200
14. Belz Abraham Lincoln 29-38, 90-95; Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press (1991). The laws of 1861-1863 that spoke to presidential power stand as congressional interpretation of it. They reflect but also qualify Lincoln's views, illustrating constitutional politics and adding layers to the discussion of the tension (and cooperation) between the powers of government (and between prerogative and the rule of law). The laws also show that policy in the Civil War was the work of both the president and the Congress.
15. Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin Co., 1973), pp. 58-67
16. Scigliano The President's 'Prerogative Powers,'" 253; Clinton Rossiter, Constitutional Dictatorship: Crisis Government in Modem Democracies (Princeton, NJ: Princeton University Press 1948, 224-39.)
17. Richard M. Pious's account is rather ambiguous about whether presidential prerogative (of which he gives several historical examples) is consistent with the Constitution, and whether the Constitution directs or controls executive power in a crisis. The American Presidency (New York: Basic Books, 1979), pp. 47-84.
18. In examining the Constitution and constitutional politics this way, this article seeks to embellish and complement recent scholarship that takes a less legalistic and more political interpretation of the Constitution as law.
19. See Franklin, Extraordinary Measures, pp. 117-38
20. Keith Whittington, Constitutional Constructions (Cambridge, MA: Harvard University Press, 1999
21. Thomas, As Far as Republican Principles Will Admit.
22. "An Essay Concerning the True Original, Extent, and End of Civil Government.
23. Mansfield adds that a people's being governed by a legislative power in political society "extends the principle of free government first expressed in the act of constituting" (Taming the Prince, p. 187).
24. Ibid, p. 188. Mansfield expands on this theme by arguing that in the modern constitution, government is judged "partly by an extrinsic, nonpolitical end" - preservation of the community-and "partly by an intrinsic political end"-that government rules by law and thus follows the form that the people chose for it. As he declares, "We want to know whether a government is free and also whether it protects us" (Taming the Prince, p. 187).
25. Locke argues: "[W]hen such a single person, or prince, sets up his own arbitrary will in place of the laws, which are the will of the society, declared by the legislative, then the legislative is changed: for that being in effect the legislative, whose rules and laws are put in execution, and required to be obeyed; when other laws are set up, and other rules pretended, and inforced, than what the legislative, constituted by the society, have enacted, it is plain that the legislative is changed. Whoever introduces new laws, not being thereunto authorized by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative" (§214). See also Mark Seliger, The Liberal Politics of John Locke (London: Allen and Unwin, Ltd., 1968), pp. 353-356
26. Taming the Prince, p. 258 (emphasis added).
27. Roy P. Basler et al., eds., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, N.J.: Rutgers University Press, 1953-1955), 6:262 (herein cited in the text by volume and page).
28. Collected Works, 4:265. It is important to recognize, though, that an argument for the moral limits on popular sovereignty was a leading feature of Lincoln's public career. Consider his argument against mob rule in the 1838 address, "On the Perpetuation of Our Political Institutions," and his case against the Kansas-Nebraska Act and Senator Douglas's absolutist opinion of popular sovereignty in the 1858 Lincoln-Douglas debates.
29. Lincoln declared: "While I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional" (4: 264).
30. "[T]he Constitution constitutionalizes the necessities of republican experience-and in no respect more obviously than in the executive. In its 'energy' or quickness, the executive deals more than any other branch with the accidents and force that may thwart or disturb republican choice. By dealing with such necessities, the executive actually represents them in the Constitution. The provision for a strong executive thus reflects a realistic recognition by the people, in ratifying the Constitution and electing a President, that emergencies will arise that may confound their choices" (Taming the Prince, pp. 255-56).
31. Publius declares: "It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy" (Alexander Hamilton, James Madison, and John Jay The Federalist Papers, ed. Clinton Rossiter [New York: Mentor Books, 1999], p. 391).
32. For example, his proclamation of April 15 declared: "Whereas the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed, in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law...Now therefore, I...have thought fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the aggregate number of seventy-five thousand, in order to suppress said combinations, and to cause the laws to be duly executed" (4: 331-332).
33. A critical review of scholarly opinion that Lincoln established a dictatorship beyond the Constitution is provided in Belz, Abraham Lincoln, chap. 1.
34. U.S. Statutes at Large, vol.12 (Boston: Little, Brown, and Co., 1863), 1262.
35. Original at U.S. Statutes at Large (Boston: Little, Brown and Co., 1845), 1:424-425
36. See "An Act to increase the present Military Establishment of the United States," July 21,1861. U.S. Statutes at Large, 12: 279-281
37. U.S. Statutes at Large, 12: 326.
38. U.S. Constitution, Article I, section 8.
39. U.S. Statutes at Large, 12: 281. The Supreme Court addressed Lincoln's power to impose a blockade and seize rebel vessels in The Prize Cases (1862). On the matter of prerogative, the majority opinion concluded, "Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case" (67 U.S. 635,670).
40. U.S. Statutes at Large, 12: 256,257.
41. U.S. Statutes at Large, 12:1262 (Proclamation of August 16,1861).
42. Like Congress's other August 6 legislation on military appropriations (and like the Supreme Court's decision in The Prize Cases), this statute was an after-the-fact endorsement of Lincoln's prior "lawless" actions laying blockades and seizing vessels of the insurgents.
43. U.S. Statutes at Large, 12:319.
44. "[A]ll slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such person found on [or] being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves" (U.S. Statutes at Large, 12: 591). It is worth noting that in between the two confiscation acts, Congress on January 31,1862 also authorized the President to take possession of railroad and telegraph lines when "in his judgment the public safety require[d] it." When Lincoln took control of these utilities in February and July of that year, he cited the act as the basis of his authority. See U.S. Statutes at Large, 12:334-335
45. and James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789 - 1897, 10 vols. (Washington: Government Printing Office, 1896-1899), 6:108-109,116.
46. Ibid..
47. As George Anastaplo observes, "[B]latantly to attack slavery is to attack property rights and perhaps even the principle of property. Where is the stopping point once one starts down that path? Today, slaveholders; tomorrow, the wealthy? And the day after, anyone of talent or distinction?" Abraham Lincoln: A Constitutional Biography [Lanham, MD: Rowman and Littlefield, 1999], 207.
48. Ibid., p. 206.
49. Ibid., p. 217.
50. These are precisely the issues in the Padilla case today, and the Bush Administration essentially takes up Lincoln's argument that public safety in times of war requires actions of prevention more than of punishment.
51. Executive Order Number 1, Relating to Political Prisoners, declared by Secretary of War Edwin M. Stanton, February 14, 1862, in A Compilation of the Messages and Papers of the Presidents, 6: 103.
52. In an official opinion that he furnished to Lincoln on this matter, Attorney General Edward Bates also argued from the text of the Constitution-though different sections of that text-to support the president's power to suspend the writ of habeas corpus as an exercise of prerogative: "[T]he President must swear to preserve, protect, and defend [the Constitution], which implies the power to perform what he is required in so solemn a manner to undertake. And then follows the broad and compendious injunction to 'take care that the laws be faithfully executed.'And this injunction.. .is addressed to the president alone, and not to any other department or officer of the Government. And this constitutes him, in a peculiar manner, and above all other officers, the guardian of the Constitution-its preserver, protector, and defender. "It is the plain duty of the President (and his peculiar duty, above and beyond all other departments of the Government) to preserve the Constitution and execute the laws all over the nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrection, and all unlawful combinations to resist the General Government... "The end, the suppression of the insurrection, is required of him; the means and instruments to suppress it are lawfully in his hands; but the manner in which he shall use them is not prescribed, and could not be prescribed, without a foreknowledge of all the future changes and contingencies of the insurrection. He is, therefore, necessarily, thrown upon his discretion, as to the manner in which he will use his means to meet the varying exigencies as they rise... "[If insurgents] employ spies and emissaries, to gather information, to forward rebellion, he may find it both prudent and humane to arrest and imprison them. And this may be done, either for the purpose of bringing them to trial and condign punishment for their crimes, or they may be held in custody for the milder end of rendering them powerless for mischief, until the exigency is past" (H. Jefferson Powell, ed. The Constitution and the Attorneys General [Durham, N.C.: Carolina Academic Press, 1999], p. 173).
53. U.S. Statutes at Large, 12: 755.
54. U.S. Statutes at Large, 12: 755, 756.
55. The Supreme Court also addressed Lincoln's military detentions in ex parte Milligan (1866), which concerned an 1864 arrest, trial, and sentence of a citizen by a military commission in Indiana. Though the Court noted the Habeas Corpus Act of 1863, it ruled against Lincoln by a 9-10 vote, with five justices denying that a civilian could constitutionally be tried before military tribunals and four justices arguing that Congress could have provided for such trials, but had not.
56. Executive Order Number 1 in Richardson, Messages and Papers of the Presidents, 6:103.
57. U.S. Statutes at Large, 12: 592.
58. Collected Works, 6:302 (emphasis in original). Consider also Lincoln's argument about the temporary as well as the extraordinary character of executive government: "I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger apprehended by the meeting, 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" (Collected Works, 6:267).
59. Lincoln asserted that in the early stages of secession and rebellion, its leading agents depended upon the mild, regular, peaceful application of the Constitution: "The insurgents had been preparing for it more than thirty years, while the government had taken no steps to resist them. The former had carefully considered all the means which could be turned to their account. It undoubtedly was a well pondered reliance with them that in their own unrestricted effort to destroy Union, Constitution, and law, all together, the government would, in great degree, be restrained by the same Constitution and law from arresting their progress" (Collected Works, 6: 263).
60. Belz, Abraham Lincoln, p. 94.
61. Ibid..
62. Prior to the passage of this act, Congress exercised this negative function in deliberations on the act. For example, on December 9,1862, Democratic Senator James Bayard of Delaware thoroughly and fundamentally criticized the Lincoln Administration's detentions and urged resistance by Congress: "How can a government be a free government where, when the judiciary is put at defiance, the legislature unites in saying to the citizen, 'You shall have no investigation; you may be arrested by officers unknown to the law, indefinite in numbers, on offenses unknown to the laws, not described, for disloyal practices, which may mean anything that an executive officer pleases; you may be arrested not only by the order of a functionary at Washington, who, from his position, may be supposed to have ability to exercise some discretion, but you may be arrested at the discretion of any one of his subordinate deputies, and an investigation is not to be made by any other tribunal than by an ex parte return in your absence, and without any power of investigation on your part, to the central authority in Washington. If the proclamation of the President of the 26th of September be carried out.. .that is the state of things and the power claimed by the Executive.' Sir, I consider that power to be a subversion of this Government" (Congressional Globe, 37th Congress, 3rd Session, 26).
63. He argued: "By the frame of the Government under which we live this same people have wisely given their public servants but little power for mischief, and have with equal wisdom provided for the return of that little to their own hands at very short intervals. 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" (4: 270).
64. He elaborated: "[A] presidential election occurring in regular course during the rebellion added not a little to the strain. If the loyal people, united, were put to the utmost of their strength by the rebellion, must they not fail when divided, and partially paralyzed, by a political war among themselves?" (8:100).
65. Lee C. Buchheit, Secession: The Legitimacy of Self-Determination (New Haven: Yale University Press, 1978
66. Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, CO: Westview Press, 1991
67. Thomas DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Roseville, CA: Prima Publishing, 2002), pp. 85-129.
68. South Carolina Declaration of Secession, December 24,1860 in Documents of American History, ed. Henry Steele Commager (New York: Appleton-Century-Crofts, Inc.), 1: 373.
69. In his Special Message to Congress (July 4,1861), Lincoln argued: "It is not contended that there is any express law for [secession]; and nothing should ever be implied as law, which leads to unjust, or absurd consequences. The nation purchased, with money, the countries out of which several of these States were formed. Is it just that they shall go off without leave, and without refunding? The nation paid very large sums, (in the aggregate, I believe, nearly a hundred millions) to relieve Florida of the aboriginal tribes. Is it just that she shall now be off without consent, or without making any return? The nation is now in debt for money applied to the benefit of these so-called seceding States, in common with the rest. Is it just, either that creditors shall go unpaid, or the remaining States pay the whole? Apart of the present national debt was contracted to pay the old debts of Texas. Is it just that she shall leave, and pay no part of this herself? "Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money? If we now recognize this doctrine, by allowing the seceders to go in peace, it is difficult to see what we can do, if others choose to go, or to extort terms upon which they will promise to remain" (4:435-436). In his Second Inaugural, Lincoln also addressed, obliquely, the injustice of the seceded states by criticizing the slave system for the perpetuation of which they attempted secession: "It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged" (8: 333).
70. As other examples, consider his statement from the 1861 Special Message: "On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men-to lift artificial weights from all shoulders-to clear the paths of laudable pursuit for all-to afford all, an unfettered start, and a fair chance, in the race of life. Yielding to partial, and temporary departures, from necessity, this is the leading object of the government for whose existence we contend" (4: 438).