Month: February 2019

Essays

Lincoln and the Rule of Law Pt. II

By Charles Hubbard

When Abraham Lincoln was sworn in as the 16th President of the United States 1861, his respect and appreciation for the rule of law was widely known. As a practicing attorney and elected public servant, Lincoln’s experience reinforced his belief that the rule of law and its equal application was the foundation of limited government. Moreover, Lincoln was a student of the Constitution and an accomplished lawyer. More than any president before him Lincoln understood how the law and the Constitution both empowered and restrained the president.

Secession and the investment and eventual surrender of Fort Sumter on April 13, 1861 put Lincoln’s commitment to the rule of law to its most severe tests. Lincoln believed that secession was unconstitutional and secessionists were organizing an armed rebellion that threatened the existence of the Republic. As such, these events demanded an immediate response. That response, however, unquestionably went beyond the generally accepted constitutional powers of the presidency.

Out of respect for the limitations of his office, Lincoln was slow to exercise his presidential authority in the first five weeks of his administration. However, the outbreak of armed rebellion required that he take a tight grip on the reins of power provided to the government in times of “invasion or rebellion”.

When Fort Sumter fell, the country and especially the military was not prepared for war. The Army consisted of about 16,000 soldiers scattered across the Western frontier and the Navy was pathetically small with ships of the line stationed off the coast of Africa and in the Pacific. Lincoln took immediate action and issued a proclamation calling for the states to supply 75,000 militiamen and calling for a special

session of Congress to convene on July 4. When the states activated the militia, Lincoln instructed the Secretary of War to pay private citizens over $2 million in government funds to help equip and train the new volunteers. The arbitrary spending of public funds seemed to violate Article 1 of the Constitution which requires that federal expenditures be supported by appropriations passed by the House of Representatives and approved by the Senate.

The rebellion also forced Lincoln to assume emergency war powers not specifically granted to the chief executive by the Constitution. Before Congress convened in July Lincoln ordered the arrest and detention of people involved in “disloyal practices” and suspending their right to petition for a writ of habeas corpus. After his initial call up of the militia, he issued a call for volunteers for three years of service, thus enlarging the Armed Forces without congressional approval. Another extremely controversial decision the president made was to institute a naval blockade of the areas in rebellion. Secretary of the Navy Gideon Wells advised Lincoln that the blockade was a violation of international law and certainly would provoke questions in Europe. Lincoln explained these and other of his actions to Congress when it convened on July 4 by saying, “whether strictly legal or not, were ventured upon what had appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them.” Ultimately, Congress approved Lincoln’s extra- constitutional acts, albeit after the fact.

Article II of the Constitution does not specifically grant these emergency powers to the president. In fact, the founders reserved the power to engage in war only to Congress, and mentioned the suspension of habeas corpus in Article I (the section which outlines Congress’s authority). However, the presidency was also seen as the branch of government which had the independence and agility to respond quickly to threats that Congress would be unable to address.

To support his emergency actions, Lincoln called on his oath of office where he pledged “to preserve, protect and defend the Constitution of the United States.” When defending his suspension of habeas corpus, he asked “are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?”[1] He saw himself in the difficult position of having to stretch his own legal authority to defend the whole legal and constitutional order. And so he defended his extra-legal prerogatives by appealing to the rule of law itself.

Lincoln and the Rule of Law Pt. I can be found here.


[1] Abraham Lincoln, “Message to Congress in Special Session,” in Abraham Lincoln: His Speeches and Writings, ed. By Roy P. Basler (Cleveland: Da Capo Press, 2001), 600-601.

Essays

Social Media: What Would Tocqueville Say?

by John Grove

Alexis de Tocqueville, the famous French observer of nineteenth-century American politics, always placed a much greater emphasis on the habits and manners of the people than the laws, elections, institutions or officials. Democracy, he argued,“is found in all the details of daily life as well as in the laws.”[1]

So rather than offer extended commentary on the federal constitution or the polarizing political figures of the time, Tocqueville examined American society and the tendencies of its citizens. If Tocqueville were observing America today, the revolutionary impact of social media on the habits and manners of the American citizen would likely be one of his central themes.

Some political effects of social media are headline news: Facebook pages run by Russian impostors; the collection of personal data to personalize political ads; The incredible transformation of political campaign strategy. But perhaps the most sweeping revolution brought about by social media is in the way it has transformed the way the average citizen observes, interprets and interacts with the world around him.

There was always great hope that the internet, and social media in particular, would give rise to a wave of political engagement and dialogue as people were exposed to diverse viewpoints and encouraged to engage with new ideas. Yet the actual impact has been to further solidify the echo chambers that cable television and talk radio had already created. Tools like Facebook’s infamous algorithms ensure that we read and digest only those materials that we already agree with, reinforcing our own personal perspectives rather than broadening our view to engage others.

Social media also provides an endless stream of anecdotal stories which serve to reinforce our ideological commitments. The recent kerfuffle involving a school group at the Lincoln Memorial is the prime example of this. This incident and subsequent revelations spawned a wave of commentary noting that we tend to interpret events like this through our own ideological lens. A recent article in The Atlantic, however, goes further to ask why we should find the incident so important in the first place? “Take away Twitter and Facebook and explain why total strangers care so much about people they don’t know in a confrontation they didn’t witness.”

The most likely reason one would give is that we believe such incidents reflect broader societal realities. But there is little reason to believe this, without some sort of evidence to that effect. Certainly, there are some Trump-supporters who have bullied and intimidated racial minorities. Likewise, there are illegal immigrants who have committed terrible crimes. The existence of such occurrences, however, does not prove or disprove either a left-wing or a right-wing narrative about society at large. Isolated incidents do, however, provide instant psychological confirmation of the narrative that we are already inclined to believe. Fifteen years ago, nobody would have heard of Covington Catholic High School, or the incident that took place on the Lincoln Memorial. No newspaper would consider two groups of protesters screaming at each other to be newsworthy. But since captivating, emblematic images and videos can be seen by millions of people around the world in a matter of hours, such incidents dominate the public imagination.

Finally, social media serves to make us hasty in our response to public events. In the past, the average citizen would read about important events in the newspaper the next morning. Within recent memory, most news was consumed at the end of the day watching the evening news. In the age of social media, however, the only news we consume is breaking news. Within minutes, descriptions, images and videos of unfolding events are at our fingertips. And within a few more minutes, rival interpretations begin to proliferate: There is continual pressure for opinion leaders to stake out a position on developing stories. If traditional media figures fail to comment on a breaking news story, they run the risk of becoming irrelevant. If an elected official fails to comment, they may be accused of hedging. Or worse, they may risk losing the opportunity to control the narrative. The result is that no sooner does news break than there is a flurry of ready-made commentary fitting the event neatly into one or another ideological viewpoint. The citizen does not even need to exert any personal effort to twist a story into his or her own preferred worldview. And of course, the media platforms provide simple, immediate means of self-expression in the forms of likes, angry emojis, and 280-character blasts.

Writing in the 1830’s, Tocqueville observed that the newspapers of the time (what we would today consider partisan or ideologically-motivated news magazines) had the ability to break individuals out of their personal shell and usher them into a productive, common life together.

“It often happens in democratic countries…that many men who have the desire or the need to associate cannot do it, because all being very small and lost in the crowd, they do not see each other and do not know where to find each other. Up comes a newspaper that exposes to their view the sentiment or the idea that had been presented to each of them simultaneously but separately. All are immediately directed toward that light, and those wandering spirits who had long sought each other in the shadows finally meet each other and unite.”[2]

Social media, it may be argued, produces an opposite effect in today’s world. Inundated by a continual stream of images, videos and voices directly to our computer screens and smart phones, we hardly feel any need at all to seek out others. We become passive consumers of information without any need to seek it out or examine it ourselves. Because of all the information we see flash before our very eyes, we become ever more sure of ourselves, not inclined to doubt anything that seems to back our preconceived view of the world.

Tocqueville was concerned about an individualism which prevented people from raising their eyes beyond their personal affairs to think about the wider world. In an age where that world comes directly to us, we may have a different form of individualism to worry about – one in which we easily and neatly fit the outside world into our own personal shell.


1 Alexis de Tocqueville, Democracy in America, Trans. By Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), p. 295.

2 Tocqueville, Democracy in America, p. 493.

Essays

Reconstructing Tennessee

by Stewart Harris

This essay was originally published in DICTA, the official publication of the Knoxville Bar Association, Vol. 44, Iss. 11 (Dec. 2017)

Okay, so you’ve won the Civil War. You occupy the former seceded states. Now, what do you do with them?

That, in a nutshell, was the issue that faced President Lincoln and the Republican-controlled Congress as U.S. troops occupied ever-increasing swaths of Confederate territory. The occupied South’s economy was destroyed, its governments absent or nonfunctional. There were many opinions – some of them rather harsh — on the proper treatment of the Southern states, but Lincoln wanted to “let ’em up easy.” On the other hand, he didn’t want to turn over Southern governance to unrepentant Confederates. He came up with something he called the “ten percent plan.” If ten percent of a given state’s eligible voters in the 1860 election (the last one prior to the Secession Crisis) were now ready to affirm their loyalty and accept emancipation, the state would be on the path to redemption.

Lincoln came up with an amnesty oath in 1863:

I, ___ __ ___ , do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States, and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, modified or held void by Congress, or by the decision of the Supreme Court; and that I will, in like manner, abide by and faithfully support all proclamations of the President made during the existing rebellion having reference to slaves, so long and so far as not modified or declared void by decision of the Supreme Court. So help me God.

But Lincoln’s oath was not enough for Andrew Johnson, the military governor of Tennessee, one of the first states to be occupied. Johnson composed his own oath, which went significantly further, requiring affiants to “ardently desire suppression of the present insurrection and rebellion,” and to promise “that I will hereafter aid and assist all loyal people in the accomplishment of all these results.” This was too much for many Tennesseans, who refereed to Johnson’s formulation as the “damnesty oath.”

Even this more stringent oath did not long satisfy Johnson, who later imposed a requirement, just prior to the 1864 election, that voters “cordially oppose all armistices or negotiations for peace with rebels in arms.” This was a direct repudiation of a major part of the campaign platform of George B. McClellan, the Democratic nominee. Think about that: before a Tennessean could vote, he had to effectively reject one of the presidential candidates. Loyalty had morphed into conformity. The morphing continued when a convention in early 1865 proposed a new state constitution. To vote in the subsequent ratification process, a Tennessean had to swear that he was an “enemy of the so-called Confederate States,” and that he did “sincerely rejoice in the triumph of the armies and navies of the United States and in the defeat and overthrow of the armies, navies, and all armed combinations in the interest of the so called Confederate States.”

While “rejoicing” sounds more appropriate to an old-time church service than to a voter registration certificate, such were the times, and such was the need to ensure that, as Johnson insisted, “[t]reason must be made odious, [and] traitors must be punished and impoverished.”

All of this fascinating history was the subject of the 2017 McMurtry Lecture at Lincoln Memorial University’s Duncan School of Law, an annual event which, this year, featured prominent attorney and historian Sam D. Elliott of Chattanooga. Sam describes it all much better than I can, and you can catch the gist of his presentation in a recent episode of my public radio show and podcast.

As Sam notes, the process of readmitting Tennessee to the Union was rather “irregular,” but in the words of Andrew Johnson,

Now you cannot get back in the present chaos and disorder without some irregularity… Talk of violating constitutional rules. Why how much law and constitution have you got now? In the absence of both, if you act irregularly, who dare say aught against it? Where is your law now? Lincoln may be charged with irregularity, but if he saves the Government by it who can find fault?

I guess that sometimes, when there is no law, you have to make up your own.