Crisis and Command: A History of Executive Power from George Washington to George W. Bush (32 page)

After he issued the Proclamation, Lincoln made clear that the Commander-in-Chief Clause allows measures based on military necessity that would not be legal in peacetime. Responding to critics of the Proclamation's constitutionality from his home state, he admitted that "I certainly wish that all men could be free, while I suppose you do not." Still, emancipation was a valid war measure. "I think the constitution invests its commander-in-chief, with the law of war, in time of war," he wrote. Anything that belligerents could lawfully do in wartime, therefore, fell within the President's authority.

There was no question in Lincoln's mind that taking the enemy's property was a legitimate policy in war. "Armies, the world over, destroy enemies' property when they cannot use it; and even destroy their own to keep it from the enemy." "Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel," such as the massacre of prisoners or noncombatants. Lincoln would consider anything permitted by the laws of war.

Emancipation did not just deny the South a vital resource, but it also provided black soldiers for the war effort. Lincoln claimed that Union generals "believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion."
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Black soldiers saved the lives and energies of white soldiers, and indeed, the lives and rights of white civilians. "You say you will not fight to free negroes," Lincoln wrote. "Some of them seem willing to fight for you." But he closed by emphasizing again that emancipation was not the goal, but the means. When the war ended, "it will have been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost." When that day comes, Lincoln promised, "there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet," they helped achieve victory.

The Emancipation Proclamation is usually studied as a question of the war powers of the national government, though it has also been studied as a question of whether it amounted to a taking of property requiring compensation.
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What is sometimes neglected is that the Proclamation was a startling demonstration of the constitutional powers of the Presidency. Lincoln decided that military necessity justified emancipation. The Supreme Court did not reach the question of the wartime confiscation of property until after the war, when it upheld the seizure, transfer, and destruction of private property that supported the enemy's ability to carry on hostilities.
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While Congress passed the two Confiscation Acts, it required individual hearings proving that a slave's owner was engaged in the rebellion or that a slave was being used in the Confederacy's war effort. Lincoln freed the slaves en masse and bypassed the painstaking judicial procedures established by Congress. The legislature authorized the acceptance of escaped slaves into the Union armed forces, but it remained for the President to organize and deploy in combat the more than 130,000 freedmen who joined the Union armies.

While the Proclamation had a broad scope, it also recognized the limits of presidential power. It only touched those areas, the Southern states, where slaves helped the enemy. It did not reach into the institution of slavery in the loyal states. Emancipation would no longer be a justifiable war measure once the fighting ceased, and it could even be frustrated by the other branches while war continued. Congress might use its own constitutional powers to establish a different regime -- a reasonable concern with Democratic successes in the 1862 midterm elections -- and allow the states to restore slavery once the war ended.

Lincoln understood that to ensure slavery's permanent end, the states would have to adopt a constitutional amendment making emancipation permanent. Toward the end of the war, he pressed for adoption of a complete prohibition of slavery in what eventually became the Thirteenth Amendment. Ratification made the link between emancipation and democratic rule clear. In June 1864, Congress rejected the amendment, which would be the first since the changes to the Electoral College after the Jefferson-Burr deadlock in 1800.

After resounding Republican victories in the November elections, Lincoln called upon the same lame-duck Congress to ratify the Thirteenth Amendment. "It is the voice of the people now, for the first time, heard upon the question." In a time of "great national crisis," Lincoln said "unanimity of action" was needed, and that required "some deference to the will of the majority, simply because it is the will of the majority."
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Congress promptly agreed to ratify the amendment even before the new Republican majorities took over.

Lincoln's great political achievement was to meld the original purpose of the war with the new goal of ending slavery. Emancipation of the slaves and restoration of the Union both drew upon Lincoln's belief, expressed in his First Inaugural Address, that the Constitution enshrined a democratic process in which the fundamental decisions were up to the people, as expressed in the ballot box. He tied together the concepts of popular sovereignty and liberty in the Gettysburg Address, reconciling the political structure of the Constitution with the values of the Declaration of Independence.
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Lincoln justified the carnage of the battle with the prospect of preserving the "new nation," created by "our fathers," that was "conceived in Liberty, and dedicated to the proposition that all men are created equal." The equality of all men, of course, was not an explicit goal of the Union as established in the Constitution, but instead was recognized by the Declaration. Lincoln called on "us the living" to dedicate themselves "to the great task remaining before us," to ensure "that this nation, under God, shall have a new birth of freedom," and "that government of the people, by the people, for the people, shall not perish from the earth."
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Restoring the Union now stood for two propositions: the working of popular democracy
and
freedom and equality for all men. Emancipation may have been a policy justified by military necessity, but it became an end of the war as well as a means.

Lincoln's words at Gettysburg illustrated, as perhaps nothing else could, the President's control over national strategy in wartime. When the war began, Lincoln established the limited goal of restoring the Union, and Congress agreed in the Crittenden-Johnson resolutions, which declared that the goal of the war was preservation of the Union, while leaving alone the "established institutions" of slavery in the existing states. Initial military strategy focused on blockading the Confederacy in the East while dividing it in the West through capture of the Mississippi. This "Anaconda" strategy would slowly strangle the South until it came back to its senses and returned to the Union.
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By the middle of 1862, stiff Southern resistance had convinced Lincoln that only unconditional surrender could end the war. National goals became both restoration of the Union and, after the Emancipation Proclamation, freedom for all. Strategy shifted to the destruction of Confederate armies in the field and the end of the government in Richmond. Lincoln's declaration that the war sought a new birth of freedom, he believed, would encourage "the army to strike more vigorous blows" by setting an example of the administration "strik[ing] at the heart of the rebellion."
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Lincoln rejected Southern peace feelers that only sought a restoration of the Union without emancipation. In response to one Southern effort to open negotiations, which Lincoln suspected were false anyway, the President sent emissaries with instructions that negotiations could only begin after the South accepted the Union and the permanent abandonment of slavery. This "surprise" term went beyond the Emancipation Proclamation, which was limited only to Confederate territory in wartime, and even Lincoln's understanding of the powers of Congress.
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Jefferson Davis spurned the Northern representatives with the words that "we are not fighting for slavery. We are fighting for Independence -- and that, or extermination, we will have."
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Describing the exchanges later, Lincoln wrote that "between him and us the issue is distinct, simple, and inflexible. It is an issue which can only be tried by war, and decided by victory."
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Lincoln's control over the conduct of the war had transformed the political goals of the conflict into Union and Liberty, and made the means no longer limited war, but a drive for total victory.

CIVIL LIBERTIES IN WARTIME

THE UNIQUE NATURE of the Civil War forced the Lincoln administration to reduce civil liberties in favor of greater internal security. Unlike a war against a foreign nation, the rebellion was fought against other Americans, and events in Maryland and Missouri showed that parts of Union territory would have to be placed under military rule. The common heritage of the North and South increased the likelihood of irregular guerilla fighting, espionage, and sabotage. Southerners could operate easily behind Union lines and find supporters of their cause. Significant political dissent from Democrats and anti-war opponents worried the administration, which tried to walk a fine line between respecting free speech and the political process and preventing the disloyal from undermining the war effort. Congress did not give its immediate approval to all of Lincoln's actions; it did not enact any law regarding habeas corpus until 1863.

Lincoln initially gave Secretary of State Seward the job of operating an internal security service responsible for detaining those suspected of aiding the Confederacy. His special agents either arrested suspects themselves or asked the military or local police to do so at strategic points in cities, ports, and transportation hubs. Seward even had newspaper editors and state politicians suspected of disloyalty thrown in detention and had the mails opened to search for espionage.
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Seward boasted to a foreign diplomat that he could "ring a little bell" and have anyone in the country arrested.

Lincoln's domestic policies on detention logically followed those applied to combat. More than 400,000 prisoners were captured in the war by both sides. Under Lincoln's theory that the Southern states were still part of the Union, all of the members of the Confederacy were still American citizens. In war, however, the United States used force to kill and capture Confederate soldiers, destroy Confederate property, and impose martial law on occupied Confederate territory. Prisoners had no right to a jury trial, and Confederate civilians had neither a right to sue for damages for destroyed property nor a right to immediately govern themselves. Occupied Confederate states would have no right to send Senators and Representatives to Congress once Union control had returned.

The normal process of law could not handle the unique nature of the rebellion. Confederate leaders, for example, were being detained not because they were guilty of a crime, but because their release would pose a future threat to the safety of the country. What if federal authorities, Lincoln wrote in a letter published in June 1863, could have arrested the military leaders of the Confederacy, such as Generals Breckinridge, Lee, and Johnston, at the start of the war? "Unquestionably, if we had seized and held them, the insurgent cause would be much weaker," Lincoln argued. "But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on
habeas corpus
were the writ allowed to operate."
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Suspension of the writ made clear that captured Confederates could not seek the benefits of the very civilian legal system that they sought to overthrow.

Lincoln's July 4, 1861, message to the special session of Congress mounted a powerful defense of his suspension of the writ. He argued that his presidential duty called upon him to protect the Constitution first before the decisions of the Supreme Court. "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States." Saving the Union from a mortal threat, Lincoln suggested, could justify a violation of the Constitution and the laws, and certainly a single provision of them. "Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated?" In a famous passage, Lincoln asked, "Are all the laws,
but one
, to go unexecuted, and the government itself go to pieces, lest that one be violated?" He suggested that painstaking attention to the habeas corpus provision would come at the expense of his ultimate constitutional duty -- saving the Union. "Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"
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Lincoln performed some acrobatics to pull back from a constitutional conflict. It was obvious that the nation indeed was confronted with "rebellion or invasion." Written in the passive voice, the Constitution's habeas corpus provision did not specify which branch had the right to suspend it. Lincoln quickly returned to the need for prompt executive action to address the crisis. "As the provision was plainly made for a dangerous emergency," he wrote, "it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together." A rebellion might even prevent Congress from meeting.

In an opinion issued the next day, Attorney General Edward Bates agreed that the President's duty to execute the laws and uphold the Constitution required him to suppress the rebellion, using the most effective means available. If the rebels sent an army, the President had the discretion to respond with an army. "If they employ spies and emissaries, to gather information, to forward rebellion, he may find it both prudent and humane to arrest and imprison them," Bates wrote. A President must have the ability to suspend habeas in case of an emergency that required him to call out the military, the vagueness of the Suspension Clause notwithstanding. In times of emergency, "the President must, of necessity, be the sole judge, both of the exigency which requires him to act, and of the manner in which it is most prudent for him to employ the powers entrusted to him."
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