March 25, 2013
Was Lincoln a Tyrant?
By JENNIFER L. WEBER
When Abraham Lincoln took office in March 1861, the executive branch was small and relatively
limited in its power. By the time of his assassination, he had claimed more prerogatives than any
president before him, and the executive branch had grown enormously.
Lincoln’s critics witnessed his expanding power with alarm. They accused him of becoming a tyrant
and warned that his assertions of authority under the guise of “commander in chief” threatened the
viability of a constitutional democracy.
Lincoln ignored his foes and kept moving. And, despite lingering discomfort with some of his
actions – particularly around the issue of civil liberties – history has largely vindicated him. Why?
Lincoln was elected in November 1860 with no ambition to expand presidential powers. But after
Confederates fired on Fort Sumter in April 1861, he quickly called for 75,000 militia troops and
ordered a blockade of Southern ports, even though a blockade suggests a declaration of a state of
war, which only Congress can declare. Then he issued a call for more than 40,000 three-year
volunteers, even though Congress has the constitutional responsibility to raise armies.
When Union troops were assaulted in Baltimore on April 19 en route to Washington, Lincoln
suspended habeas corpus along the Philadelphia to Washington line, the most dramatic of all his
actions to that point. Besides the political problem connected with suspending one of the most
hallowed concepts in Anglo-American law, Lincoln faced the legal question of whether he had the
authority to do this. The founders placed the suspension of habeas corpus in Article I, the section
that lays out Congressional powers, but muddied the waters by using the passive voice: “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.”
So who has the right to suspend, Congress or the president? Chief Justice Roger Taney ruled in
Congress’s favor. Lincoln ignored Taney and expanded the area of suspension to Bangor, Me.
Lincoln questioned whether the nation should be so attached to a law that “the government itself go
to pieces, lest that one be violated”?
Lincoln believed that with the country in a state of rebellion, he had certain “war powers” – a
concept not in the Constitution. Representative Clement Vallandigham of Ohio, Lincoln’s most
vituperative critic, accused the president of “executive usurpation” and sought to censure Lincoln for
“unconstitutional acts.” The effort failed.
Lincoln was willing to do anything he thought was right to win the war. He favored “the most
vigorous and active measures to bring the war to a speedy close, and totally opposed … any
compromise of any kind or character,” a friend said. Lincoln acted with certainty and was
disinclined to reverse major decisions.
His process tended to be incremental, though, which kept him from overreaching or overreacting. He
repeatedly expanded the suspension of habeas corpus, finally, in 1862, declaring martial law
nationwide for the rest of the war. In 1863, Congress authorized the president to suspend habeas
corpus in any case necessary.
Habeas corpus is, for many historians, a serious blemish on Lincoln’s record. Further complicating
his reputation is an 1862 choice that cleared the way for military tribunals to hear cases involving
civilians. After the war, the Supreme Court ruled that if civil courts were operational, civilians had to
be tried there, not in military courts.
Still, the evidence suggests that Lincoln’s decisions were rational. In the most comprehensive study
on the matter, the historian Mark Neely Jr. concludes that most of the arrests in which habeas corpus
was suspended would have taken place even had those protections been in place. Very few
detentions were politically motivated. Most cases involved fraudulent contracting, draft dodging,
espionage or treason.
Most important, the vast majority of arrests and military trials were in the border states, where
civilian loyalties were uncertain. There is a logic during a civil war to putting a defendant before a
jury of uniformed loyalists rather than in a court where the judge and jury may rule against the
government not on the evidence, but because they support the enemy.
Unlike Woodrow Wilson and Franklin D. Roosevelt, Lincoln did not invoke war powers to target
specific groups of people in a wholesale fashion, including political enemies. The level of his
response was proportional to the situation that confronted him.
Lincoln’s willingness to expand the limits of executive power also led him to issue the Emancipation
Proclamation. Lincoln knew that his critics would quickly attack this as unconstitutional, so he wrote
the proclamation as a legal argument, emphasizing that he was taking this step out of militarily
necessity and could do so as commander in chief.
Again, this was one of a series of steps, the last being the 13th Amendment. In the first year or so of
the war, two generals had tried to emancipate slaves in their areas of command. Lincoln overturned
each. He acted as he did partly because he was a moderate by nature, partly because he did not think
he had the constitutional power to emancipate and partly because he worried about keeping the
border states in the Union.
In the spring and early summer of 1862, Lincoln spent considerable time meeting with Kentuckians,
urging them to agree to compensated emancipation. Their resistance led Lincoln to write the
preliminary proclamation in July. Only after the nominal victory at Antietam in September did
Lincoln make it public.
Power accrued not only to Lincoln, but also to the executive branch. In March 1863, for instance,
Congress imposed the first draft in American history and created a new agency, the Provost Marshal
General’s Bureau, to enforce and administer it. The bureau had unprecedented power. By law, it was
in every Congressional district in the North, and in practice it had agents and spies reaching farther
into the countryside than any government agency ever had before. Although its main role was to
raise men for the Army, it kept tabs on anything or anyone it identified who might interfere with that
mission. In hindsight, we would say that the bureau was the nation’s first domestic intelligence
agency.
The Civil War ended with a more powerful and centralized government than the country had ever
known. Lincoln always maintained that the powers he claimed were war measures, and as soon as
the war was over he would relinquish them. And he and his successor, Andrew Johnson did, along
with much of the state apparatus that had developed to support Lincoln’s expanded authority.
The United States would not fight another major war for more than 50 years. In 1917 Wilson
established the Committee on Public Information. Initially a propaganda organization to build
support for American participation in World War I, by 1918 it was encouraging civilians to report
anyone they suspected of undermining the war effort. Immigrants were often targets. The Espionage,
Sabotage and Sedition Acts allowed the administration to crack down on anyone who wrote or said
anything against the government, the flag, the military or the Constitution. Dissidents went to prison.
Though he tried to block some legislation he deemed too repressive, Wilson stood by while the
authorities and even mobs targeted such groups as the Socialist Party and the Industrial Workers of
the World. Free speech was an empty letter. Unlike Lincoln, Wilson did not respond proportionally
to the challenge, and many historians believe his decisions were too heavy-handed for the
circumstances.
Roosevelt was responsible for the most egregious incursions on civil liberties, however. His
Executive Order 9066, issued three months after the Japanese attacked Pearl Harbor, forced nearly
130,000 Japanese-Americans living on the West Coast into internment camps. There were no
investigations into disloyalty, much less trials. The Supreme Court upheld Executive Order 9066
while the war was still raging but later shifted slightly, ruling that the government had the right to
evacuate Japanese-Americans but had overstepped that right when it detained them with no evidence
of wrongdoing.
Lincoln’s reputation is less marred because his accrual of power was equal to the threat facing the
nation. His authority grew incrementally and his administration tended not to overreach. The
obvious exceptions are a handful of high-profile cases involving politicians and newspapermen. Still,
we should keep some perspective. Neely concludes that most of the arrests and detainments involved
people who were actually breaking the law, not those merely speaking out against the government.
By contrast, Wilson’s administration systematically pursued leftists, immigrants and political
dissidents not because of their actions but because of their political beliefs. Roosevelt incarcerated
an entire class of people based on their ethnicity. Like Wilson, Roosevelt’s action was methodical.
The closest the Lincoln administration came to a systematic abuse of power was in its reliance on
military courts. The Supreme Court struck down this practice after the war was over, but there is an
argument to be made that using military courts in border states was a sensible alternative to civil
courts that were unreliable in their loyalty to the government. Lincoln’s fundamental moderation and
his go-slow approach saved him from the embarrassing excesses of his successors and spared his
reputation the stains that mar their legacies.
------------------------------------------------------------------------------------------------------------------------Jennifer L. Weber is an associate professor at the University of Kansas. She is the author of
Copperheads, about antiwar Democrats during the Civil War, and Summer’s Bloodiest Days, a
children’s book about the Battle of Gettysburg and its aftermath. She is currently working on a book
about conscription during the Civil War.
ASSIGNMENT:
Type a response addressing the following in 700-800 words.
In what ways were the issues of the early republic (1790-1810) present during the
civil war?
Make sure to cite specific conflicts and draw connections between the various issues
explicitly.