Tag: Rule of Law

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

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.

 

Essays

Lincoln and the Rule of Law Pt. I

by Charles Hubbard

We often hear the concept of the rule of law thrown around in debates over several contemporary issues. Those engaged in this discourse, however, may not fully appreciate or understand the meaning of the concept. The principle of the rule of law is a fundamental part of the Anglo-American conception of constitutional government, or more simply, limited government. Both the government and the governed are subject to the law and no government official, no single private citizen, no single group of people can claim privilege or exceptions to the law. The rules are set forth in advance and are widely known to leaders and the public in general. It is the responsibility of those in power to apply the rules impartially to all citizens regardless of status, position, or political persuasions. To do otherwise, is to risk the complete breakdown of a civil society that is grounded on constitutional government.

Adherence to the rule of law and more particularly to its application poses unique challenges for every era. The law both empowers and restrains leaders as they negotiate the tensions between the immediate crises of the day, and the need to protect the basic institutions of government. History provides numerous examples of leaders confronting this dilemma, but probably none is better than President Lincoln’s conflict over emancipating the slaves. As president, Lincoln possessed the power to emancipate the slaves, but he recognized that the constitution granted him no legal authority to do so under normal circumstances.

Lincoln’s belief in the rule of law is legendary. It was so important to the 28-year-old Lincoln that he subtly equated the concept to spirituality. In his address to the Young Men’s Lyceum of Springfield in 1837, Lincoln condemned the actions of a mob that burned a black man accused of murder. The threat to society was the failure to follow the law. Speaking directly to the threat, Lincoln said, “I know the American People are much attached to their Government;–I know they would suffer much for its sake;–I know they would endure evils long and patiently, before they would ever think of exchanging it for another. Yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property, are held by no better tenure than the caprice of a mob, the alienation of their affections from the Government is the natural consequence; and to that, sooner or later, it must come…”

Lincoln went on to speak passionately about the importance of law and order and its equal application at all levels of society and addressed the need to explain its necessity to all the people when he said, “The question recurs, “how shall we fortify against it?” The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;–let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap–let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;–let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor.” For Lincoln, the rule of law was not only essential to civil society and constitutional government, but was a part of the very essence of the American spirit.

Eventually, Lincoln’s dedication to the rule of law would inform his approach to the issue of emancipation. By issuing the Emancipation Proclamation as a “war measure” utilizing his executive authority, he understood that the Emancipation Proclamation did not permanently resolve the issue. It only freed slaves in rebelling states. He took only those steps which he believed could be justified by his constitutional authority. It remained for Congress and the American people to change the Constitution and the law in 1865 with the 13th amendment to prohibit slavery throughout the United States.

Over the years, since Lincoln pronounced his views on the law and his reverence for the structure and order it produced, our governing institutions have evolved into a system he could never have envisioned; the issues faced could never have been guessed. However, the concept to which he was so dedicated remains disarmingly simple.  The application of the principles of the rule of law remains as vital and essential to constitutional government and the maintenance of a civil society as it was in Lincoln’s nineteenth century. It continues to serve as a limitation of what goals may be immediately achieved, but Lincoln correctly observed that the law of and by the people, applied impartially, was the ultimate security to our political institutions and safeguard of the rights of all.