Abraham Lincoln and Executive Power Print E-mail
We the People: The Citizen and the Constitution
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Full Transcript of Professor Patrick's Remarks

John J. Patrick, Professor Emeritus of Education at Indiana University, was interviewed on February 10, 2009, for the Education for Democracy Podcast to discuss the sixteenth president's legacy as president.

Professor Patrick is the author of the lesson "What Was Abraham Lincoln's Legacy to American Constitutionalism and Citizenship?" which can be found at Lincoln.civiced.org. The following is a transcript of Professor Patrick's responses. You can listen to the full interview at http://www.civiced.org/lincoln-lesson?page=Multimedia.

1. Why is it important for students to learn about Abraham Lincoln?

First of all, the story of Abraham Lincoln is a prime example of the American dream, that one can rise from humble origins to achieve greatness. So this compelling story should be told and retold to every generation of Americans to instruct and inspire them to become the best that they can be.

A second reason for students to learn about Lincoln is his great significance in American history. Lincoln's story sheds light on a turning point in American history, the Civil War. As president of the federal government during America's greatest crisis, Lincoln made great decisions that saved the United States from disintegration. And his decisions shaped the future of America.

Given his huge impact on American history, most historians today consider Lincoln to be the greatest president the United States ever had. So students need knowledge of Abraham Lincoln in order to understand how and why America became as it is today.

2. Set the stage for us, if you will, by describing what the country was going through around the time of Lincoln's first inauguration.

At the time of his first inauguration, on March 4, 1861, President Lincoln confronted daunting challenges. For example, in response to his election to the presidency, seven slave states of the Southern region of the United States had seceded from the Federal Union to form the Confederate States of America and it seemed likely that other slave states would join the Confederacy.

The nation's capital, Washington, D.C., was surrounded by the populations of two slave states, Maryland and Virginia. Many of these people were hostile to President Lincoln and the Republican party, and they were sympathetic to the Confederacy. And, Fort Sumter, a federal military post in the harbor of Charleston, South Carolina was under threat of seizure by armed forces of the Confederacy.

So, right from the beginning of his presidency, Abraham Lincoln was in deep trouble.

3. What arguments did Lincoln employ to justify his extensive use of presidential war powers during the early months of the war?

President Lincoln acted quickly to defend the Constitution and the federal government against insurrection. He had taken an oath of office to "preserve, protect, and defend the Constitution of the United States," and Lincoln, a man of strong character and deeply held principles, was determined to fulfill this pledge by using every executive power available to him. So he issued executive orders to call up state militia for federal military service and to expand the size of the regular military forces. He proclaimed a blockade of Confederate ports. He suspended the writ of habeas corpus to curtail anti-Union activity by disloyal citizens and he authorized the borrowing and spending of money to pay for defense of the Union.

President Lincoln acted without prior congressional approval because Congress was not in session at the outbreak of war. So, the president called a special session of Congress, which convened on July 4, 1861. On that occasion, Lincoln explained his actions and asked Congress to consent to what he had done during an unprecedented national emergency.

In his July 4, 1861, “Message to Congress,” President Lincoln said "no choice was left but to call out the war power of the Government; and so to resist force employed for its destruction by force for its preservation." Lincoln claimed "nothing was done beyond the constitutional competency of Congress." And decisions were made, Lincoln said, "trusting that Congress would readily ratify them."
Congress did not disappoint him.
By seeking and receiving the endorsement of Congress for his unprecedented exercise of war powers, Lincoln deflected the arguments of political opponents, who claimed he had violated “the separation of powers” principle at the core of the Constitution, and thereby he had usurped the authority of Congress.

So, by getting Congress to endorse his extensive and unprecedented use of presidential war powers, Lincoln justified the legality of his actions at the start of the Civil War.

4. Did Lincoln violate the Constitution when the war began by suspending the writ of habeas corpus?

Lincoln's suspension of the writ of habeas corpus was a hot issue during the Civil War and it has continued to be controversial until the present. 

Let me begin to explain this controversy by reviewing the habeas corpus clause of the Constitution.

The writ of habeas corpus requires that evidence be presented before a judge in a court of law to justify the detention of someone accused of a crime. If the evidence is insufficient, then the judge will order the release of the prisoner. This right of an accused person is guaranteed by Article 1, Section 9 of the Constitution, which 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."

Lincoln decided to suspend the writ of habeas corpus at the very beginning of the Civil War to deter Confederate sympathizers in Maryland from aiding the enemy by obstructing the movement of Union soldiers to Washington, D.C. to defend the city. Lincoln's political opponents denounced this decision and the Chief Justice of the United States, Roger B. Taney, called it "unconstitutional." Taney, presiding in a District Court of Maryland case titled “Ex parte Merryman,” rebuked the president for usurping the authority of Congress by unilaterally suspending habeas corpus rights.

President Lincoln sharply rebutted Taney's opinion in his “Message to Congress” on July 4, 1861. Lincoln argued that the Constitution does not exactly say who is to exercise the power of suspension of the writ of habeas corpus. Then he pointed out that the emergency facing the federal government was extreme, and Congress was not in session, so he suspended the writ of habeas corpus. Lincoln then sought the approval of Congress and quickly got it. Later, with the support of Congress, President Lincoln extended the area of the country within which the writ of habeas corpus could be suspended. More than 12,000 persons were detained in military prisons during the Civil War due to charges that they somehow aided or abetted the Confederacy.

Lincoln's overwhelming support from Congress certainly strengthened his argument that suspension of habeas corpus rights was not unconstitutional. And I agree with Lincoln. However, Lincoln's political opponents never stopped denouncing him for this action.

5. How did Lincoln respond to the issue of slavery before and during his presidency?

Lincoln despised slavery. He thought it morally wrong for one person to own and use another one. And he believed slavery to be incompatible with the founding principles of America, which promoted free enterprise, free government, and free people.

Before and during his presidency, Abraham Lincoln adamantly opposed the spread of slavery to the federal territories. He understood that the government of the United States had power, under the Constitution, to prohibit the extension of slavery to the territories under its direct authority and he wanted this power to be used against the spread of slavery in the western territories of the United States.

The United States Constitution, however, permitted each state of the Federal Union to decide for itself whether or not to permit slavery within its boundaries. The right to decide for or against slavery was among the powers reserved to the states under the Constitution's principle of federalism. Thus, Lincoln accepted slavery within the states where it existed.
Lincoln knew it would take a constitutional amendment to ban slavery everywhere in the United States and he believed that the political situation immediately before and after his election to the presidency was not favorable to enactment of an anti-slavery constitutional amendment.

Immediately before and after the Civil War started, President Lincoln focused on preservation of the Union, not the abolition of slavery. In particular, he feared that the slave states of Missouri, Kentucky, Delaware, and Maryland might leave the Union and join the Confederacy if he stressed emancipation of slaves. And if these so called "border states" were to secede, Lincoln knew it would severely hurt the Union's chances for military victory against the Confederacy.

By the middle of 1862, however, President Lincoln decided that declaring the abolition of slavery within the Confederate states would be a good war strategy. So he issued his historic Emancipation Proclamation on January 1, 1863.

6. How did Lincoln use the Emancipation Proclamation as a weapon against the Confederacy?

President Lincoln claimed the Emancipation Proclamation to be an action based on military necessity. He wanted it to undermine and weaken the capacity of the Confederacy to successfully conduct warfare. And it did what the president intended. For example, slaves were encouraged to run away from their owners, which drained manpower away from the work force that supported the Confederate army. Many former slaves joined the Union army and significantly increased its effectiveness. More than 180,000 black soldiers fought for the Union against the Confederacy.

The Emancipation Proclamation gave a compelling moral purpose to the Union army, whose soldiers, after the Proclamation, fought not only to preserve the United States but also to win freedom for oppressed people.

Finally, European countries, such as Britain and France, had considered recognition and assistance for the Confederacy but after Lincoln's Emancipation Proclamation, they decided not to support the Confederacy because the Union was now fighting for the noble cause of freeing enslaved people.

So, the Emancipation Proclamation turned out to be, among other things, a positive contribution to the Union war effort.

7. Did the Emancipation Proclamation end slavery throughout the country?

No, it applied only to enslaved persons in areas of the Confederate states not controlled by the Union at the time the proclamation was issued.

The Emancipation Proclamation did not apply to slave states that remained in the Union, such as Missouri, Kentucky, Maryland, and Delaware. However, enslaved persons were freed by Union soldiers as they advanced into the rebellious states and occupied territory within them.

8. Was the Emancipation Proclamation constitutional?

Yes, it was a constitutional exercise of the President's powers, within the context of the Civil War. President Lincoln issued this executive order primarily to weaken the Confederacy's power to wage war against the Union. Lincoln understood that the president could not constitutionally abolish slavery throughout the United States by issuing an Executive Order. He knew that an Amendment to the Constitution was required to achieve an immediate and comprehensive emancipation of slaves in America.

9. How was the Declaration of Independence important to Lincoln's political philosophy?

Abraham Lincoln revered the founding principles of America expressed in the Declaration of Independence. For example, he believed that all persons are created equal in their possession of certain God-given natural rights, such as the rights to life, liberty, and the pursuit of happiness. He believed that the government's primary responsibility is to protect the inherent natural rights of individuals and he believed that a government derives its authority from the consent of the governed.

For Lincoln, these principles of the Declaration of Independence were absolute moral truths that set the standards by which citizens should distinguish between good government and bad government, and by which each citizen should judge between just and unjust treatment of other persons. The founding principles, according to Lincoln, should guide the making of public policy and laws by the government. Slavery violated America's founding principles. Thus, Lincoln vehemently opposed slavery.

During his famous debates with Stephen A. Douglas in the 1858 campaign for election to the U.S. Senate, Lincoln referred to the Declaration of Independence and its principles again and again to rebut his opponent's ideas, such as deciding whether or not to permit slavery in the federal government's western territories by simple majority vote of the inhabitants. Douglas called it popular sovereignty, but to Lincoln it opened the possibility of tyranny by the majority in violation of the inherent natural rights of enslaved persons.

After winning election to the presidency, Lincoln travelled by train from his home in Illinois to his inauguration in Washington, D.C. Along the way, he stopped at Philadelphia, Pennsylvania, to visit Independence Hall. In this hallowed place where the Declaration of Independence had been adopted by the Second Continental Congress in 1776, President-elect Lincoln said: "I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence."

10. What is Lincoln's legacy to American constitutionalism and citizenship?

Lincoln's legacy to American constitutionalism and citizenship is huge. 

Here are a few of the highlights:

He saved the Federal Union and Constitution in his time and bequeathed to succeeding generations a deep understanding that this Union, the United States of America, cannot be constitutionally dissolved by a minority of people or states for their own selfish purposes.

Lincoln put in motion the process whereby slavery was ended in the United States by the 13thAmendment to the Constitution.

He rededicated America and its people to the founding principles of the nation, expressed in the Declaration of Independence.

By saving the Union, Lincoln also saved for his generation, and for subsequent generations of Americans, the nation's founding principles of liberty, equality, and government by consent of the people.

Finally, Abraham Lincoln consistently demonstrated exemplary civic character and responsible citizenship on behalf of the public good. This kind of good civic behavior is necessary for the survival and prosperity of a constitutional democratic republic, such as the United States of America.

We Americans continue to honor the memory of Abraham Lincoln because his legacy has been indispensable to the preservation of America's founding principles and this legacy has inspired every generation of Americans, from his time to the present, to bring these principles more fully and fairly into the lives of everyone.