The American Anti-Civil Liberties Union

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In his brilliant essay, "The Anatomy of the State," Murray Rothbard wrote that state power always relies on the manipulation of public opinion perhaps as much as its use of force and coercion (See his Egalitarianism as a Revolt Against Nature and Other Essays). Since the class of people constituting the state always necessarily consists of only a small portion of the population, the majority must be persuaded by ideology that "their government is good, wise, and at least, inevitable, and certainly better than other conceivable alternatives." This is where intellectuals come in: "Promoting this [statist] ideology among the people is the vital social task of the u2018intellectuals.’"

The intellectual’s livelihood in the free market is never too secure, but "the State, on the other hand, is willing to offer the intellectuals a secure and permanent berth in the State apparatus; and thus a secure income and the panoply of prestige." Thus, there has long been the tradition of the "court historian" who is "dedicated to purveying the rulers’ views of their own and their predecessors’ actions." This doesn’t apply to all intellectuals, of course, nor is it restricted to historians; economists are as guilty as anyone.

A sterling example of this phenomenon is how intellectuals have dealt with the abuse of civil liberties. During the Clinton administration, for example, the war on drugs was greatly escalated, which involved mass confiscation of private property under asset forfeiture laws and an assault on privacy rights. The government began spying on internet communications, the administration used confidential FBI files against its political enemies, there was the use of fraudulent search warrants, roving wire taps, IRS prosecutions of political opponents, attacks on the Second Amendment, and on and on.

While some intellectuals were concerned about these civil rights abuses, a large number of academics, journalists, and "public intellectuals" defended them vociferously by attacking the integrity of federal judges who were investigating the abuses, issuing statements that Clinton was "no worse" than some of his predecessors, and even inviting Clinton as an honored speaker at the American Bar Association convention after he was found in contempt of court for lying under oath. Only with the support of the intellectual class can our rulers get away with the destruction of civil liberties. This effort is perhaps why Clinton was impeached but not convicted.

Having just written a book on Abraham Lincoln that includes a chapter on Lincoln’s suspension of civil liberties in the North, I have been struck by how so many intellectuals, for more than a century, have behaved in manner similar to the Clinton court intellectuals in providing intellectual cover to Lincoln’s demolition of civil liberties in the Northern states.

One recent example is Richard Ferrier, who in an interview on WordNetDaily defended the Lincoln administration’s arresting without a warrant, brief imprisonment, and ultimate deportation of Ohio congressman Clement L. Vallandigham for making speeches in opposition to the Lincoln administration in and around his hometown of Dayton, Ohio.

Vallandigham was snatched from his family in the middle of the night by federal soldiers and sent to the Southern states, after which he went to Canada. The Ohio Democratic Party made him its gubernatorial nominee in absentia.

Ferrier defends Lincoln, who had suspended the writ of habeas corpus to make such military arrests possible, by saying that Lincoln was especially gentle in just escorting Vallandigham to the Southern states (Vallandigham’s wife and children might not have agreed), and that Vallandigham was a trouble maker anyway. Ferrier further argues that Vallandigham organized sometimes violent protests in Canada.

This is a completely bizarre argument, considering that at the time another Ohio resident, General Ulysses S. Grant, was intentionally waging war on civilians in the Shenandoah Valley by burning hundreds of houses to the ground , burning all the crops, and killing or confiscating all livestock. Hundreds of New Yorker draft protesters were shot dead by federal soldiers during the New York City draft riots of 1863. But Ferrier is concerned about a single man, Vallandigham, organizing allegedly "violent’ anti-war protests in Canada.

According to Mark Neely, author of Fate of Liberty, there were more than 13,000 arrests of Northern civilians during the war after Lincoln had (unconstitutionally) suspended the writ of habeas corpus, including dozens, if not hundreds, of newspaper editors and owners who were critical of the Lincoln administration. Ferrier brushes this off by saying that many of these people were Confederate spies. But how could he know this if there were no trials and no due process? As Dean Sprague wrote in Freedom Under Lincoln, with all these civilian arrests and imprisonments by military authorities,

The laws were silent, indictments were not found, testimony was not taken, judges did not sit, juries were not impaneled, convictions were not obtained and sentences were not pronounced. The Anglo-Saxon concept of due process, perhaps the greatest political triumph of the ages and the best guardian of freedom, was abandoned.

Neely gives an account in his book of how Lincoln’s military became quite proficient at torturing Northern civilians who had been arbitrarily arrested without a warrant. On page 110 of Fate of Liberty he writes, "Handcuffs and hanging by the wrists were rare, but in the summer of 1863, the army had developed a water torture that came to be used routinely." Upon learning of the use of torture, no one in the Lincoln administration "expressed any personal outrage or personal feeling at all" over it, "including Lincoln’s secretary of state" William Seward.

Another part of Ferrier’s "defense" of Lincoln’s civil liberties abuses includes his argument that civil liberties abuses also occurred in the Confederacy. He apparently believes that two wrongs make a right.

Ferrier is carrying forward a long tradition of court intellectuals who have excused the tyrannical behavior of the state during the Lincoln administration. After writing of Lincoln’s "amazing disregard" for constitutional liberty and calling him a "dictator," Clinton Rossiter in Constitutional Dictatorship nevertheless referred to Lincoln’s "superlative example" as a "true democrat" whose actions established an "illustrious precedent." Literally hundreds of newspapers were shut down by the Lincoln administration, but "freedom of speech and press" somehow "flourished almost unchecked," wrote Rossiter.

In his otherwise masterful book, Constitutional Problems Under Lincoln, James G. Randall says there are no hard data on the exact number of civilian arrests, but he is nevertheless sure that the reported number must be "exaggerated." Mass arrest of civilians without a warrant or charges being filed was not an attack on constitutional liberty but merely "out of keeping with the normal tenor of American law." And the thousands of arbitrary arrests, after all, were ordered by Lincoln "with the best of motives."

In his otherwise outstanding book, Freedom Under Lincoln, Dean Sprague "defends" Lincoln by observing that "no political prisoner was put to death." Along these lines, Randall even went so far as to say that, yes, Lincoln established a secret police force under Secretary of State William Seward that arbitrarily arrested thousands of Northern citizens, but "it was exceedingly mild by modern standards." Writing in 1950, Randall was making the "he wasn’t as bad as Hitler, Stalin, and Mussolini" defense.

In 1862 there was a small "war" between federal soldiers and the Santee Sioux Indians of Minnesota. At the end of the hostilities 303 Indians who were merely present at the conclusion of the fighting were arrested, imprisoned, and scheduled to be executed after military "trials" or tribunals that lasted about ten minutes each, according to David Nichols, author of Lincoln and the Indians. As Nichols explains, Lincoln was fearful that the European powers might be encouraged to be more supportive of the Confederacy if they learned of a mass execution of 303 men whose guilt had not been proven beyond reasonable doubt, so he pared the number down to just 39. This turned out to be the largest mass execution in American history yet, incredibly, some historians praise rather than criticize the Lincoln administration for it because "it could have been worse."

One frequently finds an "ends-justifies-the-means" mentality in all the "defenses" of civil liberties abuses during the Lincoln administration. Randall was a progressive, and he applauded the fact that disposing of the Constitution allowed Lincoln to destroy the system of states rights and federalism, which Randall euphemistically called "federal-state readjustment." Lincoln "believed in purposeful government," said Randall, and all outstanding presidents were "strong executives" who enlarge the size and scope of the state. He used the phrase "living constitution," perhaps coining it for the first time.

Literary critic Edmund Wilson wrote in Patriotic Gore of how Lincoln can be compared to Lenin and Bismarck because he, like the other two, "established a strong central government over hitherto loosely coordinated peoples" by becoming "an uncompromising dictator." Lincoln, Lenin and Bismarck were all succeeded by newly formed government bureaucracies so that "all the bad potentialities of the policies he had initiated were realized, after his removal, in the most undesirable way."

Mark Neely excoriated Wilson’s views, however, as being wrongheaded and based on "Wilson’s own extremist theories of individual freedom" (Fate of Liberty, p. 231). But Wilson’s views of individual liberty seem to have been almost identical to the views of Thomas Jefferson and many other founders who feared centralized governmental power. They are "extremist" only to those who are comfortable with such powers and the loss of individual liberty they entail.

But it is just this kind of argumentation that apparently won Neely a Pulitzer Prize for Fate of Liberty, where on the back cover it is announced that, thanks to Neely’s literary efforts, "Lincoln emerges from this account with his legendary statesmanship intact . . ." A job well done.

Thomas J. DiLorenzo [send him mail] is the author of the LRC #1 bestseller, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Forum/Random House 2002) and professor of economics at Loyola College in Maryland.

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