Academic journal article South Dakota Law Review

Lincoln the "Dictator"

Academic journal article South Dakota Law Review

Lincoln the "Dictator"

Article excerpt

I. INTRODUCTION

"The godfather of despotism": the charge has haunted Abraham Lincoln from the advent of the Civil War to the wake of his bicentennial. (1) From partisans during the war to early twentieth century historians to post-World War II political scientists fearing an "imperial presidency" to the latest libertarian Lincoln-hater, Lincoln has been vilified as someone who destroyed the Constitution in order to save the Union. The bill of particulars is lengthy and grave: he suspended habeas corpus and jailed opponents, flouted a court order by the Chief Justice of the United States, ordered troops raised and materiel purchased, blockaded Southern ports, emancipated slaves after denying the power to do so--all without prior Congressional authorization. Professor Clinton Rossiter of Columbia put the case starkly in 1948: "dictatorship played a decisive role in the North's successful effort to maintain the Union by force of arms.... Lincoln's amazing disregard for the words of the Constitution was considered by nobody as legal." (2)

Although the critique is now heard less often, the recent claims of sweeping executive power by the 43rd president have rejuvenated the question, and Lincoln-haters capitalizing on the impending birthday celebrations have noisily pressed their case. Lincoln has his defenders, to be sure, some with ingenious briefs in defense of his actions, even to the point of labeling him an "arch-constitutionalist," (3) who chronically defended his actions by reference to specific aspects of the document. Neither judgment is satisfying, and both approaches quickly tend to speed to the limits of their logic, be it based in pragmatism or constitutional literalism, and ultimately the remarkable evolutionary nature of

Lincoln's constitutional thought is homogenized into fixed, primary colors.

In one sense, of course, "dictatorship" is a misplaced metaphor. Consider the record:

* Lincoln constantly tried to square his position with the Constitution;

* he routinely--if sometimes belatedly--sought congressional approval for his actions;

* he suffered an intrusive congressional oversight committee throughout the war;

* and he stood for election near the depth of his popularity, even reporting plans for an orderly transition should he be defeated, which he expected almost to the last minute.

Dictators simply don't go to the polls and let the canvass stand if they lose. Lincoln was not Robert Mugabe. But he was the most muscular president since Andrew Jackson, although the office had so atrophied under his two immediate predecessors that any initiative would have been startling.

Indeed, in many respects Jackson was the initial goad to Lincoln's constitutional thinking. Lincoln was a railroad lawyer. He did not view himself as a constitutional theorist. Concerned with a recent rise in mob violence, he spoke firmly as a young man in praise of fidelity to the free institutions of government, including the laws and the Constitution. (4) Throughout his life, when Lincoln thought of the founding fathers, he thought of Washington and 1776, not of the Constitutional Convention. Indeed, when he entered politics as an anti-Jacksonian Whig, Lincoln built his platform from Whig Party talking points. For example, his first run for public office, at age 23, focused on the need for improving navigation of the Sangamon River. (5) Like his idol Henry Clay, the young Whig Lincoln believed in a generous understanding of national powers (think of the Bank of the United States) and federal funding of internal improvements. (6)

Lincoln's constitution remained shaped by Whig politics once he achieved elective office. In Congress, he condemned President James Polk in caustic terms for initiating war with Mexico and challenged him to identify the exact "spot" where hostilities began. (7) His sometime law partner, William Herndon, chided Lincoln--as did many others--for his post hoc fastidiousness, and Lincoln's response cast a paradoxical shadow over his later career. …

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