The Constitutional Legacy of Abraham Lincoln...... reported by Benita Ghura
In celebration of Law Week in 2009, the San Diego County Public Law Library hosted several special events, including guest speaker Professor Bryan Wildenthal, who teaches Constitutional and Native American Law at Thomas Jefferson School of Law.
Professor Wildenthal gave an interesting presentation analyzing the extent in which Lincoln transgressed or adhered to constitutional limits, especially during wartime. Professor Wildenthal further analyzed whether Lincoln’s actions set a precedent for subsequent presidents who may have transgressed constitutional limitations during wartime.
For example, the Bush administration’s military commission policy allowed use of the water- boarding technique against members of Al Qaeda, an interrogation technique used against war criminals. In the professor’s view, use of this technique violated the U.S. Constitution. Proponents of the Bush administration’s action cite to Lincoln as an example of a President who did not always follow the parameters of the U.S. Constitution, and who used the military commission to suspend habeas corpus.
However, the question arises whether or not Lincoln clearly violated the U.S. Constitution or correctly interpreted the text of the U.S. Constitution, which allows the suspension of habeas corpus in times of rebellion and war. The debate arises on whose authority habeas corpus may be suspended and what may take the place of habeas corpus during its suspension.
In a Congressional session, Lincoln addressed both the House and the Senate to justify his actions. Lincoln above all was a practical man and viewed by some as a leader willing to take drastic and draconian steps. Lincoln’s actions were motivated by his desire to preserve the union and the nation as a whole, arguing it was necessary to suspend the law in part to preserve the whole because the alternative would have resulted in the collapse of the government. In other words, Lincoln argued “it was possible to lose the nation but preserve the Constitution; but to save the nation, it was necessary to sacrifice a limb” (i.e., violate the law).
Lincoln interpreted the U.S. Constitution as authorizing suspension of habeas corpus whenever necessary for the safety and preservation of the nation.
The apparent lesson other U.S. Presidents have learned from Lincoln’s actions is that it is acceptable to violate the part to save the whole. For example, in World War I, protestors were harshly punished; in World War II, President Roosevelt authorized imprisoning Japanese citizens regardless of their innocence. However, in comparison, Lincoln established a rule of law during the Civil War crisis to treat both military personnel and civilians the same. In the post 9/11 era, the Bush administration did not apply the same rule of law. Therefore, the question arises whether or not subsequent administrations were justified in their actions in the manner of Lincoln during the Civil War.
Scholars have depicted Lincoln either as a compassionate country lawyer with a deep conviction that slavery was morally wrong; or, as a dictator who ruled the country with an iron fist; imposed Marshall law; shut down newspapers; and suspended habeas corpus. Scholarly arguments exist to support both images. Interestingly, Professor Wildenthal maintains that neither depiction of Lincoln is entirely accurate.
Professor Wildenthal describes Lincoln as a strong executive who loved his country and took whatever action was necessary to preserve the union. In other words, Lincoln did what he had to do in order for America to survive as a nation. Lincoln strongly believed in democratic elections and the rule of law. Even when violating constitutional limitations on presidential power, Lincoln provided a reasonable and justified rationale for the exception to the rule.
Benita Ghura is a Reference Librarian at the San Diego County Law Library and a member of SCALL