David Mayer Puts Lincoln on Trial
David Mayer, one of the most popular lecturers at TOC's annual summer seminar, is a professor of history and law at Capital University in Columbus, Ohio, and teaches constitutional history to both the university's law school students and its undergraduates. He received his J.D. from the University of Michigan and his Ph.D. from the University of Virginia.
Navigator:The title of your lecture, "Lincoln: Hero or Villain?" suggests the change that has occurred since I was in grammar school and Lincoln's birthday was celebrated as a holiday of freedom.
Mayer: Yes, Lincoln's image has become tarnished in recent years. For example, about a decade ago, a fellow named Mark Neely published an important book called The Fate of Liberty: Abraham Lincoln and Civil Liberties. In his epilogue, Neely talks about the large number of people—not just historians, but literary critics, political scientists, historical novelists—who now talk about Abraham Lincoln as a dictator. It is a view that is becoming a widely held view among scholars and writers.
Navigator:One obvious way to approach the question is to ask: Was his use of power unprecedented in the United States?
Mayer: That is one approach. But one also has to recognize that, as president, Lincoln faced an unprecedented crisis: the Civil War and its threat to the rule of law. And there is a related question: Whatever one may think about Lincoln's actions during the Civil War, did they permanently change the nature of the Constitution? That is another theme that writers have touched upon, the idea that the Civil War represents a great turning point in the role of the federal government, the idea that its powers were permanently ratcheted up as a result of the Civil War.
Navigator:Before we move on, I want to follow on the question of whether his actions were unprecedented in American history: Were there any precedents within the Revolutionary War for Lincoln's actions, perhaps some things that governors did when they had war on their territory?
Mayer: During the Revolutionary War, there were a number of violations of rights. I can't describe them as constitutional rights, because the U.S. Constitution did not exist. But there are things that clearly would have been violations of either state constitutions or, later, the U.S. Constitution: confiscation of property and bills of attainder, for example. In fact, one reason the federal Constitution prohibits states from passing bills of attainder is that there were several instances of legislative bodies passing such bills declaring persons guilty of treason, and everybody recognized that that was wrong, that it was a violation of customary rights inherited from England. So that is why the prohibition was put in the Constitution.
Navigator:O.K. On to Lincoln and what your lecture outline terms "stretching the Constitution."
Mayer: Lincoln is accused of violating the Constitution in a number of ways. I think that the major ones are taking away the right of habeas corpus, trying civilians in military court, suppressing freedom of speech or the press, and instituting a national draft. These are the major charges against him. All of these things are controversial. The suspension of the writ of habeas corpus in times of rebellion is provided for in the Constitution, but the question is whether the president can do it on his authority or does it need to be done by an act of Congress.
Navigator:What does the Constitution say?
Mayer: It just says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." Supreme Court chief justice Roger Taney, acting as a federal circuit judge, declared Lincoln's action unconstitutional, arguing that only Congress could suspend habeas corpus. But Lincoln's view was that, as chief executive of the government of the United States, he had the authority to suspend it. So he essentially defied Taney's order. Congress subsequently passed a law authorizing the president to suspend the writ of habeas corpus, thus avoiding the question. But that was one of the areas where Lincoln exercised broad powers as president.
Trying civilians in a military court is another area, and one that obviously has great relevance today. Lincoln's actions during the Civil War, along with other, more recent precedents from WWII, have been cited in recent months to support the Bush administration's plan to have military trials.
Navigator:Who was tried in these courts?
Mayer: Usually, Southern sympathizers who were active in the border states or states near border states—in Ohio, for example, or southern Indiana, or in Kentucky. These states were still in the Union, but they had a number of citizens who were sympathetic to the Confederacy. The most famous case, Ex parte Milligan, involved a Confederate sympathizer in Indiana.
Navigator:What does "ex parte" mean?
Mayer: "Ex parte" means "on behalf of." It refers to somebody challenging the legality of his imprisonment by petitioning to a federal court, arguing he has been unjustly imprisoned. The Milligan case actually reached the U.S. Supreme Court, and the Court rendered a landmark decision after the war, which I'll discuss in my talk at the summer seminar. It's a case that has special significance to the modern debate over military tribunals.
Another alleged violation of civil liberties was the embargo of Southern ports. Lincoln ordered the U.S. Navy to blockade major Southern ports and seize ships bringing cargo in or out, since the Confederacy depended heavily on foreign trade. In The Prize Cases (1863), Southern citizens whose property had been seized challenged that as a deprivation of their property rights without due process of the law, a violation of the Fifth Amendment. It put the Lincoln administration in a dilemma, because Lincoln's position was that no one could lawfully leave the Union. But if that is true, then these Southern citizens were U.S. citizens, and if they are U.S. citizens, then their constitutional rights ought to be respected. Lincoln's government claimed this property captured at sea belonged to enemy belligerents. Who was right?
Navigator:This brings up the whole issue of secession itself.
Mayer: Libertarians have charged Lincoln with being a tyrant for standing in the way of Southerners who wanted to exercise their right of revolution. That raises interesting questions which I hope to talk about in my lecture, about whether the secession of the Southern states after Lincoln's election was a justifiable exercise of a people's right of revolution.
Navigator:But was it a right of revolution or a right of secession? That is, did the Southerners say, "The government has become so oppressive that it no longer has the right to rule and therefore we are in revolt"? Or did they say, "The government is fine, but, thank you very much, we would rather do it for ourselves and we are going to secede"?
Mayer: There are two separate but related questions here. One is the political question about the legitimacy of revolution generally; the other is the constitutional question about the federal nature of the Union. One question is: Were Southerners justified in dissolving the Lockean social compact they had joined by ratifying the Constitution? Under the principles of the Declaration of Independence, there are specific conditions put on the exercise of that right, and they lead to the further question: Were Southerners justified in believing that Lincoln's election represented such a threat to them that they could legitimately exercise this right of dissolving the government? A separate question is: Can the Union be dissolved? Lincoln took the position that the United States was one political society. In fact, he took the position that the Union was older than the states and that the Union created them as states.
Navigator:But then, who created the Union?
Mayer: Actually, that question doesn't settle the issue. Good arguments can be made on both sides. Southern secessionists can point to certain facts about American history and about the nature of our national government during the time of the Revolution, both before and after the Articles of Confederation. And Lincoln could point to other facts about the federal nature of the Union at the time of the Revolution that would support his view. What I plan to do in my talk is to suggest which view better fits the actual history of the Revolution.
Navigator:I have to touch on one last part of your lecture outline: slavery and the Emancipation Proclamation.
Mayer: The Emancipation Proclamation is one of the most misunderstood documents in American constitutional history. A lot of people have the view that "Lincoln freed the slaves." Scholars like to point out Lincoln had no constitutional authority to free the slaves, and if he had tried to do that it would arguably have been an abuse of power—if we regard slavery as a peculiar form of property, which existed under the laws of some of the states.
What Lincoln did do is issue a proclamation freeing slaves in those areas still in armed rebellion against the government of the United States—in other words, in those parts of the Confederacy not yet under the control of the Union army. That is why some scholars have made the provocative point that, technically speaking, the Emancipation Proclamation freed no or very few slaves, because it applied only where the government of the United States was not in control.
As Lincoln saw the war, slavery was not directly an issue. But it became an issue when the Emancipation Proclamation went into effect, and many scholars see that as a symbolic change in the nature of the Civil War, at least from the North's perspective. What began as a war to preserve the Union became a war to defeat slavery.
Navigator:But even if the Civil War was not begun to eradicate slavery, surely slavery played a large part in bringing on the war.
Mayer: Slavery was very troublesome in early American history. American courts generally followed the lead set by English courts, especially the great English judge Lord Mansfield. In a famous decision, called Somersett's case (1772), he recognized that slavery was contrary to natural law, that it is a violation of human beings' natural rights to be placed under the control of someone else. Nevertheless, he also recognized that slavery can exist if positive law allows it to exist, if man-made law permits it. That is the way that the English courts split the difference. Abolitionist arguments said that slavery was illegitimate and that positive law must always be subordinate to natural law. The slaveholders held slaves to be a legitimate form of property. American courts tended to follow the compromise position, but that raised very troublesome issues about the status of slavery in unorganized territory, that is, federal territory not yet organized into states. That is another area where Lincoln parted company with the Supreme Court—over the Dred Scott case. Chief Justice Taney, writing for the Supreme Court, said Congress cannot ban slavery from the territories without violating the Fifth Amendment property rights of slave owners in slave-holding states. Lincoln took the view that the Court's decision was wrong and that it was not binding on the other branches of government. Of course, that was one reason some Southerners viewed Lincoln's election as president as a threat, if not to their right to hold slaves in the states where they resided, then to their rights to be slaveholders should they emigrate to the western territory.
Navigator:Doesn't it raise a larger question, too? If you have certain rights and you get them vindicated by the Supreme Court and the president says, "I am not going to listen to the Supreme Court," obviously you might view that president as a danger to your rights.
Mayer: Actually, that is one area where our modern perspectives can be misleading. In early American constitutional history, before the Civil War, it was not generally agreed that the U.S. Supreme Court had the final say on constitutional questions. Other powerful presidents, like Thomas Jefferson and Andrew Jackson, also defied the Court or took the position that the Court does not have the final say on certain kinds of constitutional questions. Andrew Jackson, for example, vetoed a bill rechartering the Bank of the United States on constitutional grounds, and his response to the argument that the U.S. Supreme Court has upheld its constitutionality was: "That's the Court's opinion, but I am president. I am given the power to veto legislation I believe is unconstitutional; I think it is unconstitutional; so I will veto it." So when Lincoln questioned the legitimacy of the Supreme Court's Dred Scott decision, he was doing something that was perceived as more legitimate than it would be today.
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