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.