Getting Right with Lincoln as a Libertarian

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Timothy
Sandefur's review of Harry Jaffa's A
New Birth of Freedom: Abraham Lincoln and the Coming of the Civil
War
in the January 2001 issue of Liberty raises an important
issue for the libertarian community: How do we evaluate Abraham
Lincoln and with him a pivotal interval in American history? Subsumed
under this question are normative considerations of political order
and the rule of law.

Sandefur
writes, "[F]ew historical figures have suffered more at the
hands of libertarians and conservatives than Abraham Lincoln."
Certainly, individuals such as M.E. Bradford, Clyde Wilson, and
Thomas DiLorenzo have taken Lincoln to task for revolutionizing
American nomocracy and advancing interventionist policies. His arrogation
of legislative powers, Whiggism, militarization of American government
– all of this encouraged subsequent erosion of federal republicanism
and freedom.

Sandefur
responds that "[T]he general conclusion that Lincoln was a
tyrant or a fool is not justified at all." (I haven't encountered
libertarians or conservatives who predicate their critique of Lincoln
upon a charge of idiocy. If anything, he was a tyrannical genius.)
He comments on the issue of habeas corpus suspension, "[T]he
Constitution specifically permits the suspension of habeas corpus
during civil insurrection." Article I, section 9 does read,
"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." The placement and pedigree of this provision,
however, contemplate congressional exercise. Juristic exposition
in the early republic indicates likewise, for instance St. George
Tucker:

"In
England the benefit of this important writ can only be suspended
by authority of parliament. It has been done several times of
late years, both in England and in Ireland, to the great oppression
of the subject…In the United States, it can be suspended, only,
by the authority of congress; but not whenever congress may think
proper; for it cannot be suspended, unless in cases of actual
rebellion, or invasion. A suspension under any other circumstances,
whatever might be the pretext, would be unconstitutional, and
consequently must be disregarded by those whose duty it is to
grant the writ."

Interestingly,
modern writers of disparate orientations show consensus on the tenuous
legality of Lincoln's habeas corpus suspension and other
acts. Consider these assessments, respectively from conservative
political scientist Marshall DeRosa and historian Arthur "FDR
and JFK Forever" Schlesinger, Jr.:

"…Lincoln's
expansive interpretation of presidential powers made him the most
imperial president in American history, thereby setting a dangerous
precedent for predisposed successors. The incarceration of approximately
twenty thousand political prisoners, the closing of over three
hundred newspapers, the interruptions of state legislatures, the
blockade of the South, the unilateral suspension of habeas corpus,
explicit and implicit defiance of the Supreme Court, the sanctioning
of the creation of West Virginia, private property seizures, and
electioneering/voting irregularities have all been rationalized
as necessary war measures."

"On
April 19, he imposed a blockade on rebel ports, thereby assuming
authority to take actions hitherto considered as requiring a declaration
of war. On May 3, he called for volunteers and enlarged the army
and navy, thereby usurping the power confided to Congress to raise
armies and maintain navies. On April 20, he ordered the Secretary
of the Treasury to spend public money for defense without congressional
appropriation, thereby violating Article I, section 9, of the Constitution.
On April 27, he authorized the commanding general of the army to
suspend the writ of habeas corpus – this despite the fact that
the power of suspension, while not assigned explicitly to Congress,
lay in that article of the Constitution devoted to the powers of
Congress and was regarded by commentators before Lincoln as a congressional
prerogative. Later he claimed the habeas corpus clause as a precedent
for wider suspension of constitutional rights in time of rebellion
or invasion – an undoubted stretching of original intent."

An
1864 resolution from the Georgia legislature in this vein referred
to "the usurpations and tyrannies, which characterize the Government
of our enemy, under the ever-recurring and ever-false plea of the
necessities of war." (Necessity, as Milton wrote, is the tyrant's
plea.) To be blunt, it requires massive intellectual evasiveness
to maintain Lincoln upheld the rule of law. His serial lawlessness
and constitutional vandalism simply cannot be sustained without
such bad faith.

This
doesn't mean libertarians must champion the Confederacy. All too
often, discourse regarding 1861-1865 is dominated by a false dichotomy
a la "If you condemn Lincoln, you must be an apologist for
everything in the Confederacy." No doubt, many critics of Lincoln
– myself included – consider several Confederate principles
applicable: anti-protectionism, decentralization, secession, etc.
Still, it's perfectly possible, appropriate, and indeed imperative
for one to find major flaws with the Union and Confederacy alike.

Whether
we should esteem the ephemeral Southern polity invaded in its infancy
and concluded by conquest is a constructive debate. What we should
not be debating is whether to esteem the criminal who prosecuted
that bloodbath.

December
14, 2000

Myles
Kantor lives in Boynton Beach, Florida.

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