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Essays

Presidential Emergencies: Constitutional Power or Congressional Dereliction?

by John Grove

Earlier this week, Professor Hubbard made the important observation that President Trump’s declaration of emergency must be considered within a historical and constitutional context. I disagree, however, with Professor Hubbard’s general view that the use of domestic emergency powers can be seen as an outgrowth of our constitutional system of separated powers, so long as it is utilized with circumspection and is subject to judicial review. Instead, I believe presidential emergencies are fundamentally at odds with the principle of the separation of powers and pose a significant challenge to that view of our constitutional system.

Professor Hubbard is correct to suggest that the constitutional framers expected the President to be able to act with speed and unity in times of national crisis. However, their final product does not contain any indication that presidents would, after the declaration of a crisis, have constitutional authority to exercise powers beyond those delegated by Article II.

The constitution itself does not grant any specific authority on the part of the executive to suspend the normal operation of law and take on new powers. If we are to find any such constitutional authority, it must be derived from Article II, Sec. 1, which states that the “The executive Power shall be vested in a President of the United States of America,” or Article II, Sec. 3 which states that the president “shall take care that the laws be faithfully executed.” This latter source I find untenable, as modern emergency declarations do not execute laws but alter them. It may be argued that identifying times of crisis and utilizing the whole force of the nation in the manner best suited to address that crisis is an inherent part of “executive power” and, therefore, is constitutionally assigned to the president by Article II, Sec. 1, however.

There may be some evidence for this. It has long been argued that there are certain exigencies to which a legislative body, with its deliberate and slow character, cannot adequately respond. John Locke, for instance, argued that the executive authority possessed “prerogative” powers to act for the good of society outside the established law if and when the legislature is unable to act. Yet, by the time the constitution was ratified, prerogative powers in Great Britain had been systematized and limited, and many powers considered to be prerogatives of the Crown, such as the pardon power and refusal of the royal assent (veto), when incorporated into the American constitution, were specifically codified and listed. They were not left to the discretion of the president. Furthermore, the only power the constitution specifically recognizes to suspend the normal legal order in time of crisis is the authority to suspend habeas corpus. This is, however (Abraham Lincoln’s example notwithstanding), granted to Congress in Article I, not to the president.

While presidents continue to make rhetorical appeals to an inherent constitutional authority to declare emergencies, most declarations (and, indeed, all which abide by the requirements of the National Emergencies Act), rely upon specific statutes passed by Congress which authorize presidential actions in certain circumstances. Here, I believe, is the real origin of contemporary emergency declarations. Over the years, Congress has regularly and willingly ceded its decision-making authority to the executive for the sake of ease, efficiency and flexibility. This is not limited to times of emergency, as the vast majority of domestic regulation empowers executive branch agencies to decide, through administrative rule-making, substantive regulations. Declarations of emergency merely highlight this tendency in starker relief. The separation of powers has some drawbacks and one of them is that it makes it difficult to speedily adopt new policies. The regular use of national emergencies addresses this problem, but it does so from outside the framework of separated powers, as it allows for the executive branch to exercise legislative power.

Consider the National Emergencies Act. This law was intended as a restriction on presidential authority to declare emergencies, yet it still authorized the president, without Congressional input, to unilaterally decide when an emergency exists, and to identify what powers he would wield to rectify it: A remarkable power. Congress initially seemed to understand just how much authority they were ceding to the president, as the original version of the National Emergencies Act allowed Congress to override a president’s declaration of emergency with a simple majority vote of both houses (the president being unable to veto the resolution). In 1983, however, the Supreme Court ruled that Congress could not simply abolish the presidential veto for certain acts of Congress, and found that portion of the act unconstitutional. The Court, thereby, made Congress choose: Either allow the president unilateral authority to declare an emergency – knowing it can only be rejected by overriding the president’s veto – or refuse to allow the executive to usurp your legislative authority. Congress chose the former and amended the National Emergencies Act to allow presidents to veto a Congressional resolution overruling an emergency declaration, essentially removing Congress’s oversight of such acts. This is what happened last week.

Another difficulty that arises from viewing presidential emergencies as simply one part of the system of separated power is the role of the courts. Professor Hubbard suggests that the Supreme Court ought to have final say on whether a president has overstepped his constitutional authority in a given emergency, just as it does on other separation of powers issues. But the Court can and should not play arbiter of what constitutes a national emergency or crisis. This is the essence of what the Court has called a “political question” with no clear legal answer. What does “crisis” mean? What circumstances justify a new, immediate and extra-legislative response? These are questions with no legal or constitutional answer and ought to be reserved for the political branches of government to decide. The Court should, of course, police the actions presidents take in the name of a national emergency to protect the rights of citizens, as it most famously did in the Youngstown Sheet and Tube Company case, but it cannot take it upon itself to decide what does and does not constitute an emergency.

This brings us back to Congress. It is Congress which possesses the constitutional authority to decide what policies and funding are appropriate in what circumstances, and it is Congress which ought to restrain presidential actions. Long ago, executive prerogative was justified by observing that legislatures were often not in session and could not easily be recalled to address a pressing crisis. In the age of internet communication, cell phones and air travel, we ought to consider whether this is still a necessity, or whether it might not be appropriate for Congress to retake its legislative authority.

Essays

Trump’s Emergency and the Separation of Powers

by Charles Hubbard

President Trump’s recent decision to declare a national emergency to allow the diversion of previously appropriated funds to address the crisis of illegal immigration along the southern borders of the United States has focused national attention on the long-standing debate over the balance of power authorized by the Constitution between the three branches of the national government. The Constitution allows for the executive branch to declare a national emergency to address an urgent national crisis. In addition, the president has the authority as commander-in-chief to exercise emergency war powers. The founders deliberately provided these vague and nonspecific powers to enable the President to respond quickly and without the delays often caused by congressional debate to an immediate crisis. However, the Constitution requires the president to seek congressional approval for all appropriations.

American presidents frequently declare national emergencies in cases of natural disasters, economic emergencies and threats to public security. However, there is a difference between a national emergency and the use of war powers. The pull and tug has existed between Congress and the executive branch over the use of these powers since the beginning of the Republic. Congress has the right under the Constitution to withhold funding to limit any abuse of the emergency powers by the president.

One of the earliest disputes over this issue arose when Thomas Jefferson unilaterally and without congressional authority purchased Louisiana from Napoleon. Jefferson, a strict constitutional constructionist, utilized a treaty agreement in order to bypass the responsibility of Congress to appropriate funding for the purchase of the vast territory. Over one hundred years later, Woodrow Wilson in February 1917 issued an emergency proclamation to address a maritime shipping shortage. Ultimately Wilson’s action led to the creation of the United States Shipping Board that still operates to regulate the Merchant Marine. In a highly controversial presidential decision, Franklin D. Roosevelt in 1933 declared a banking emergency crisis and declared a bank holiday closing the banks. The Supreme Court eventually ruled that the president was limited, but the court did not specify or provide limits to the power of the executive to declare a national emergency.

In an effort to limit the power of the president to declare a national emergency, Congress in 1919 enacted legislation authorizing Congress to terminate or overturn actions taken under a presidential proclamation or emergency action. More recently in 1976, Congress passed the National Emergencies Act in response to the abuses of the Nixon administration. This act requires a presidential emergency or proclamation to be specifically limited for one purpose and does not allow the president to provide for every possibility. The legislation specifically prevents the president from arbitrarily lumping multiple issues together at his sole discretion. The passage of this legislation, however, did not eliminate the potential problem associated with determining the existence of a national emergency: The president determines the existence of a national emergency. The president then determines the appropriate response to the emergency.

Presidential war powers are distinctly different from the national emergency powers. Frequently over the years, presidents have found it necessary to resort to the use of the war powers. Certainly, Abraham Lincoln during the Civil War exercised extraordinarily broad powers under the provisions of the war powers. Theodore Roosevelt called upon the war powers to seize the Panama Canal Zone. Harry Truman went to war in Korea without a declaration of war by exercising his authority as commander-in-chief. Lyndon Johnson during the Vietnam War acted without congressional approval until the Gulf of Tonkin resolution passed in 1968. Ronald Reagan used the military in Granada and Panama. The president has the constitutional right and the obligation to declare a national emergency or exercise extraordinary war powers to protect and preserve public order and security.

What then is the role of the court system as the third governing institution to provide checks and balances? It is the courts’ responsibility to determine whether there is a national emergency. In the case of the war powers, is a declaration of war required? In either case, are the actions of the president taken in response to the emergency constitutional? The legal process can be time-consuming and that is precisely why the founders granted these nonspecific powers to the executive. Ultimately, the court must have the final say.

Undoubtedly, the debate between the branches of government will continue. The Constitution with its creation of the three branches of government, each retaining specific powers, is a remarkable and unique contribution to political theory and practice. The debate and the resulting dialogue has produced limited and representative government for the people and by the people of the United States. It is important that we view the most recent use of expansive presidential power within the context of this delicate and essential balance.

Essays

The First to Die

By Stewart Harris

Elbert Williams was thirty-one years old in June of 1940.  He lived with his wife, Annie, in Haywood County, Tennessee, just northeast of Memphis.  He worked at the Sunshine Laundry in Brownsville, where he arguably had the most important job:  He kept the fire burning beneath the boiler that powered the entire enterprise.

Elbert was African-American, as were approximately seventy percent of the residents of Haywood County.  He served as a board member of the local chapter of the NAACP, which was trying to register black people to vote for the first time since Reconstruction.  Other NAACP leaders were threatened, their homes were burned down, and they fled.  Elbert, a big man and not easily intimidated, decided to remain in Haywood County.

Late one night, two Brownsville police officers showed up at the Williams home.  Elbert was just out of bed, barefoot, not dressed to go outside.  The police took him anyway.

Early the next morning, Annie went to the police station, where she tried to bring Elbert shoes and clothing.  The officer on duty—one of the two who had abducted her husband only hours before—looked straight at her and said, “I don’t know who he is.  Elbert Williams hasn’t been here tonight.”

Annie went to the Brownsville postmaster, a powerful local official.  Could he help her find her husband?  She still had his clothes.  The postmaster told her, “Maybe he doesn’t need any clothes.”

Eventually, desperately, Annie went to the Hayward County Sheriff, who finally acknowledged what everyone knew.  “Oh, Miz Williams, those boys are not going to hurt your husband.  They just want to ask him a few questions.  They’ll turn him loose.  If he’s not home in day or two, let me know.”

Elbert Williams never came home.  On June 23, 1940, a Sunday morning, his battered, lifeless body was found in the nearby Hatchie River.  The coroner called an immediate inquest, right there by the side of the water, that same morning.  There was no autopsy, no medical examination of any kind, despite contemporaneous accounts that the body was bruised, battered, castrated, and perhaps chained to a heavy weight, and despite Annie’s insistence that there were two holes in Elbert’s chest.  The inquest found that death had been caused by “foul means by parties unknown.”  The coroner—the brother-in-law of one of the police officers who had kidnapped Elbert—ordered an immediate burial.  That same afternoon, with no family present, Elbert’s body was buried in an unmarked grave.

The death caused quite a stir, for a while, anyway, at least within the local black community.  Elbert Williams was the first NAACP member to be murdered for advocating civil rights.  The perpetrators wanted to send a message, and they succeeded.

With time, however, memories faded, or were suppressed, at least in the local white community.   People simply didn’t talk about it.  Decades passed.

Enter trial attorney Jim Emison, a white man.  After graduating from Vanderbilt and the University of Tennessee’s College of Law in the 1960’s, Jim embarked upon a legal career in West Tennessee, a career marked by success, and accolades, and the respect of his peers.  He served as President both of the Tennessee Bar Association and the Tennessee Trial Lawyers Association.

Jim practiced law for years before he came across a reference to the case of Elbert Williams.  Intrigued, he asked colleagues about it.  Most of them had never heard of it.  More time passed, and Jim was busy, he couldn’t stop thinking about the unsolved, largely forgotten murder that had happened so close to where he lived and worked.

When he retired in 2011, Jim could have devoted his life to golf, or travel, or any of the other things that successful former attorneys do.  He decided, instead, to bring his analytical and investigatory skills to bear on the Williams case.  It was then more than seventy years since Elbert had died.  Documentary evidence was scant.  Witnesses, and perhaps, the perpetrators themselves, were dead.  There was no body.  Cases don’t get much colder than that.

Nonetheless, over the next seven years, Jim made considerable progress.  Others joined his cause.  On May 15, 2018, Governor Haslam signed legislation sponsored by Rep. Johnnie Turner and Sen. Mark Norris creating the Tennessee Civil Rights Crimes Information, Reconciliation, and Research Center to serve as a clearinghouse for cold civil rights cases.  On August 8, 2018, District Attorney Garry Brown re-opened the investigation into Elbert Williams’ murder.  There is no statute of limitations for murder in Tennessee.

Meanwhile, the search for Elbert Williams’ body has begun.  Vicksburg geophysicist Ryan North has used ground-penetrating radar to locate nine unmarked graves in the local cemetery where family lore says that Elbert was buried.  Careful excavation will soon begin, overseen by Dr. Amy Mundorff, a professor at the University of Tennessee’s Forensic Anthropology Center, home of the famous “body farm.”  If a male body is found matching Elbert’s large stature, its mitochondrial DNA will be compared to mitochondrial DNA of one of Elbert’s great-great-nieces.  Elbert’s body may still harbor forensic evidence, such as bullets.  Jim Emison has tracked down the sidearm carried by one of the police officers involved in the kidnapping.  Maybe, just maybe, a ballistics test will establish a match.

Last August, Jim gave a presentation at Lincoln Memorial University’s law school.  Like a spellbound jury, the audience hung on his every word.  Clearly moved, several members of Knoxville’s African-American community murmured along as Jim spoke: “Tell it!”  “Amen!”  At times, there were tears, both from the audience and from Jim himself.  A number of tissues were in evidence.

That same day, I interviewed Jim for my radio show.  If you’d like to listen to our discussion, click here.  Justice for Elbert Williams has been delayed, but perhaps it won’t ultimately be denied.

This essay originally appeared in DICTA: A Monthly Publication of the Knoxville Bar Association Vol. 45, Iss. 9, p. 26. Reprinted with permission of the author.

Court WatchingEssays

Court Watching: Timbs v. Indiana

by John Grove 

Background:

When the Bill of Rights was ratified in 1791, its provisions only restricted the actions of the federal government, not the state governments. This was confirmed by the Supreme Court several decades later in a case called Barron v. Baltimore, in which a man claimed the city of Baltimore and state of Maryland had denied his Fifth Amendment rights. A unanimous Court found that a state could not be found to have violated the Fifth Amendment because it did not apply to it.

In the twentieth century, however, the Court began to apply the Bill of Rights to states through a process known as incorporation. To do this, the Court uses the Fourteenth Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added). The Fourteenth Amendment was specifically focused on state activity and limited the manner in which states could interact with their citizens. (More on the language of the Fourteenth Amendment below). The Court has found that, at the very least, there are certain rights which are so fundamental and so firmly rooted in our history that they cannot be denied by the states without violating these Fourteenth Amendment protections. Most provisions in the Bill of Rights have been incorporated, but up until last week, the portion of the Eighth Amendment which forbids the imposition of excessive fines was an exception.

Tyson Timbs was arrested and pled guilty to dealing heroin. At the time of his arrest, police seized his Land Rover which was used in his criminal activities. The state of Indiana then used a process known as civil forfeiture to permanently take possession of the vehicle. Civil forfeiture is a civil (non-criminal) proceeding in which the state seizes property that is suspected to have been involved in some sort of criminal activity. The Land Rover was worth around $42,000, which is four times the amount of the maximum fine allowable for the crime Timbs was convicted of.

The Constitutional Question and the Arguments

The Court was tasked with deciding 1) whether the excessive fines clause applies to state governments, and 2) whether civil forfeiture constitutes a “fine.”

Timbs argued that the seizure of his vehicle was a violation of the Eighth Amendment protection against excessive fines which is applied to the states through the Fourteenth Amendment. Civil forfeiture, he argued, has the effect of a fine, even if its purpose is not entirely punitive. The value of the Land Rover was significantly higher than any allowable fine and was therefore “excessive.”

Indiana, on the other hand, argued that the excessive fines clause does not apply to the state at all, as it has never been incorporated. Even if it should be incorporated, moreover, the state argued that civil forfeiture should not be included in the application to the states, as there is no significant historic tradition of prohibiting civil forfeitures. in other words, even if the excessive fines clause is fundamental and deeply rooted in our history, a right against civil forfeiture is not.

The Ruling

The court unanimously sided with Timbs, and officially applied the excessive fines clause to the state governments. Justice Ginsburg wrote the opinion and noted the deep historical roots of protections against excessive fines dating back to Magna Carta in 1215, the English Bill of Rights in 1689 (which the Eighth Amendment copied verbatim), and many similar state constitutional provisions. As to the idea that civil forfeiture was not part of that historically rooted right, Ginsburg dismissed the approach: “In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed – not each and every particular application of that right – is fundamental or deeply rooted.” The Court had already applied the excessive fines clause to civil forfeitures undertaken by the federal government. There was no reason to exclude them from the right when applied to the states.

The Interesting Side Issue:

As noted above, the Fourteenth Amendment includes both the Privileges or Immunities Clause and the Due Process Clause. Textually speaking, the former seems to suggest the logic of incorporation: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In 1873, however, the Supreme Court ruled that the Privileges and Immunities Clause did no more than restate the equal right all citizens had when it comes to the areas of our political life controlled by the federal government. As such, it chose not to incorporate the Bill of Rights. When the Court did begin to incorporate those rights, they chose to do so using the Due Process Clause, which states “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In using the Due Process Clause to protect specific rights, the Court applies what is called “substantive due process” – the idea that there are some substantive rights (as opposed to procedural ones) that are so fundamental to free government that to deny them is to deny due process of law.

Justice Clarence Thomas has long held that the Court has been using the wrong part of the Fourteenth Amendment all along. He issued a concurring opinion which agrees with the outcome of the cases but argues that rights like the one against excessive fines, are made applicable to the states by the Privileges or Immunities Clause, while the majority of the Court appealed to the Due Process Clause. Timbs, he notes, did not make any claim that he had been denied a proper process: “He does not argue that the Indiana courts failed to ‘proceed according to the law of the land’… or that the State failed to provide ‘some baseline procedures’…His claim has nothing to do with any ‘process’ ‘due’ him.” Rather, he claimed that he was denied an immunity guaranteed to citizens of the United States. While Thomas has made similar arguments in the past on his own, he now has a companion in his unlikely quest to change the standard, as Justice Neil Gorsuch also wrote a concurrence indicating his general agreement with Thomas’s view.

The Court’s opinion can be read in full here.

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.