Lincoln's Example: Executive Power and the Survival of Constitutionalism

Abstract

In the wake of the Bush administration's use of executive power since 9/11, Abraham Lincoln's executive actions during the Civil War have received more attention than usual. Typically associated with the idea that constitutions should recede in favor of the rule of one during crisis situations, Lincoln's actions have been used on one side as the implicit and even explicit basis of presidential claims to increased power and on the other side as the example par excellence of what presidents should not do. Taking issue with this conventional interpretation and continuing the more recent scholarly recovery of Lincoln's profound concern for constitutionalism, I explicate the principles that guided Lincoln's use of executive power during the Civil War. By drawing out the importance of political necessity as the basis for "prerogative" over and against both popular approval and unlimited constitutional powers, I show how this principle also provides an alternative perspective and even an antidote to the current scholarly debate concerning whether constitutions are better preserved by "Jeffersonian" or "Hamiltonian" prerogative. Lincoln's example also shows us that we should not legalize, regularize, or institutionalize those powers that may be necessary to avert a crisis. Perhaps most importantly, Lincoln's statesmanship teaches us that constitutions can moderate and limit discretionary executive power only if the people learn an attachment to their Constitution that does not come naturally to them.

The Law: A Constitutionalist's Defense of Prerogative: Taft's Our Chief Magistrate and His Powers

“…Essentially, the Jeffersonians assume that the Constitution grants the government insufficient powers to respond to emergencies. As a result, they would permit the president to violate the law in order to save the nation but also force him to recognize that he is a servant and that the sovereign legislature will judge the rightness of his actions (Adler ; Adler ; Bailey ; Schlesinger ; Wilmerding ; Rockman and Waltenburg ; Rudalevige ; see also Kleinerman ; Kleinerman )…”

“…Lincoln's emergency actions during the Civil War have been cited with approval by both Hamiltonians and Jeffersonians (Mattie ; Sorenson , 268, 278 n.4; Thomas , 545–50; Schlesinger , 58–67; also Kleinerman , 806–08). Yet in his July 4 Message to Congress, Lincoln set out a largely Jeffersonian defense of his actions.…”

“… Kleinerman's argument is notable, seeking to bridge the divide between Hamiltonian and Jeffersonian arguments (Kleinerman , 805–09). Yet ultimately, Kleinerman seems to present a modified Jeffersonian argument.…”

“…While the standard Jeffersonian argument calls for legislative ratification after the fact, Kleinerman believes the legislature should simply determine whether the president's actions were necessary. Essentially, Congress would not positively support the president when he acted outside the law but in the service of the public (which might create a dangerous precedent), but would simply decline to impeach and remove him (Kleinerman , 809). On the other hand, he seems to suggest that popular will (rather than the Constitution) is the key to restraining executive action: “instead of Congress authorizing or the Supreme Court rationalizing presidential discretion, the people should let the executive assert it, and let our political judgment, as informed by the Constitution, decide when it has gone too far.” Yet Kleinerman's standard for popular judgment is “constitutional necessity”—seemingly simply an appeal to necessity, which may easily stray outside the bounds of law (Kleinerman , 219, also 222–23, 226–27).…”

The New Unitary Executive and Democratic Theory: The Problem of Alexander Hamilton

“…4 More important, in The Federalist, Hamilton defended "energy" in the executive, and, in that argument, wrote that "unity in the executive" was necessary both for energy and for democratic accountability. In the past decade, political scientists have returned to the history of political thought and American political development to address the problem of executive power, particularly regarding the constitutionality of prerogative (Arnold 2007;Bailey 2004;Corbett 2006;Fatovic 2004;Kleinerman 2005;Thomas 2000;Ward 2005) and the ability of the people to discern and judge it (Feldman 2008;Kleinerman 2007). However, as we will see, Hamilton's making unity in the executive compatible with, and even necessary to, the republican form points to a larger and underappreciated question in Hamilton's political thought.…”