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 four years later, 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 very actions threatened the viability of a constitutional democracy.
Lincoln ignored his detractors 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 the closing of all Southern ports, even though such a blockade suggests a declaration of a state of war, which only Congress can declare. Next, the president issued a call for more than 40,000 three-year volunteers, despite the fact that it’s Congress that 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 quashing one of the most hallowed concepts in Anglo-American law, Lincoln faced the legal question of whether he had the authority to do so. The founders placed the suspension of habeas corpus in Article I of the Constitution, 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.”
But just who does have the right to suspend, Congress or the president? Chief Justice Roger Taney ruled in Congress’s favor. The White House ignored the decision and even expanded the area of the suspension to Bangor, Maine. The president questioned whether the nation should be so attached to a law that “the government itself go to pieces, lest that one be violated”? Lincoln maintained that with the country in a state of rebellion, he had “war powers” – a concept not actually in the Constitution.
He repeatedly expanded the suspension and finally, in 1862, declared martial law nationwide for the duration of the war. In 1863, Congress authorized the president to suspend habeas corpus in any case necessary.
But not everyone in the legislature was on-side with the White House. Representative Clement Vallandigham of Ohio, Lincoln’s most vituperative critic, accused the president of “executive usurpation” and sought to censure the president for “unconstitutional acts.” The effort failed.
The suspension of habeas corpus is, for many historians, a serious blemish on Lincoln’s record. Further complicating his reputation is an 1862 executive action that cleared the way for military tribunals to hear cases involving civilians.
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.
Additionally, the vast majority of arrests and military trials were in the border states, where civilian loyalties were uncertain.
Unlike other wartime presidents 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, but also because he doubted a president had the constitutional power to emancipate. He also 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 the Battle of 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 government more powerful and centralized 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 President 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.
Roosevelt was responsible for the most egregious incursions on civil liberties, however. His Executive Order 9066, issued three months after the Japanese attack on 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.
Lincoln’s reputation is less marred; his accrual of power was equal to the threat facing the nation. The 16th president’s 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.
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 local civil courts that were likely dis-loyal to the government. Lincoln’s fundamental moderation and his go-slow approach to applying war powers likely saved him from the embarrassing excesses of his successors and spared his reputation the stains that mar their legacies.
Jennifer L. Weber is the author of Copperheads: The Rise and Fall of Lincoln’s Opponents in the North and Summer’s Bloodiest Days, a book about the Battle of Gettysburg written for children. She teaches at the University of Kansas. This article was originally published in the New York Times’ Civil War 150th Anniversary Blog, Disunion. It is reprinted here with permission of the author.