I’ve been involved, lately, in an internet discussion about Abraham Lincoln. As an unreconstructed libertarian of the anarcho-capitalist school, I take a dim view of Mr. Lincoln’s excesses on behalf of the Union. Nothing can be more controversial than his suspension of Habeas Corpus.
Lincoln was inaugurated on March 4, 1861. South Carolina had seceded in December 1860 with five states following in January. Texas seceded two days before his inauguration and on April 17,Virginia did. Lincoln issued his edict on April 27, 1861 following secession by Arkansas, North Carolina and Tennessee. By that time, all of the states that would secede, had.
Article I Section 9 of The Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Article I deals with the powers of Congress while Article II deals with the power of the executive. It’s obvious, that the suspension of Habeas was meant to be a congressional initiative and that the emergency requiring it was foreseen and provided for by The Founders. Lincoln as a lawyer could not deny knowledge of this, yet he took it upon himself to unilaterally take a step that was the single greatest affront to the spirit of the Constitution in American history. “Abraham, you have some ‘splaining to do.”
And he tried to on July 4, 1861 when he addressed Congress, justifying his actions. He spoke of himself in the third person. Lincoln and his apologists maintain that events that gave him no choice.
But he had a choice and he had to have known it. Rather than unilaterally suspending Habeas, he could have called upon Congress to do so, as prescribed in the Constitution. Just two years later, it did. Why did Lincoln resort to such anti-constitutional action?
There are those who maintain that because the specific paragraph does not specify that it’s a power only of Congress may be the only valid argument they have but as I’ve noted above, it appears in Article I, devoted to congressional power. On anything other than superficial inspection, that doesn’t make sense.
The Republicans held a 31 to 15-edge over the Democrats in the Senate with three Unionists who could have been expected to be sympathetic to him and his agenda. The House was even more lopsided, 108 to 44 with 32 from various unionist parties. Such majorities are nearly veto proof.
But it was worse. By the time he gave that July 4, 1861 speech to Congress, many of the Southern Democrats had already left and joined the governments or militaries of their new Confederate states, leaving the Republicans with a far greater functional majority.
Why didn’t Lincoln go to Congress? He was known as a highly successful attorney in Illinois. He had defended one of the very first, if not the very first, medical malpractice lawsuits in American history. But it gets even worse for the Lincolnians.
Abraham Lincoln was one of the most accomplished orators and rhetoricians of the day. His debates with Stephen Douglas were legendary as was his speech at Cooper Union in New York City. The latter is credited with making him president.
In measured tones and cadences, he placed his argument before the audience, one of whom stated that he had initially been had been moved to pity of him for his ungainliness but later was brought to his feet along with the rest of the audience of 1,500, screaming as he got caught up in Lincoln’s speech.
He described it this way. Once Lincoln got going: “…his face lighted up as with an inward fire; the whole man was transfigured. I forgot his clothes, his personal appearance, and his individual peculiarities. Presently, forgetting myself, I was on my feet like the rest, yelling like a wild Indian, cheering this wonderful man.”
This was in a New York which would be expected to be hostile to him inasmuch as Gov. William Seward was to be a candidate for the Republican nomination for which Lincoln would complete. The question before the house was whether the Constitution forbade or permitted the federal government to regulate and forbid slavery in the new territories west of the Mississippi.
The speech itself is nothing short of inspired. It impels the reader to no conclusion other than Lincoln’s. His law partner, William Herndon stated that Lincoln spent more time on it than any other of his fabled past. It shows.
That past included his debates with Stephen Douglas just the year before which had catapulted him to national renown, though he lost the Senate election of 1858. His factual research was meticulous. His logic was impressive and impeccable and its force irresistible. He used a process of inference that permitted no dispute. The speech has to rank with the greatest of our history. Only William Jennings Bryan’s ‘Cross of Gold’ speech, Martin Luther King, Jr’s, ‘I Have a Dream’ and his own Gettysburg Address just two years later, come to mind as competitors, the opening lines to which just about every school child knows by heart.
Does that seem like a man who would be unable to persuade a Congress of the necessity of action? Anyone who maintains that a man of such formidable talents could not persuade a sympathetic legislature of the need to suspend a constitutionally provided remedy for the developing maelstrom, sells him short! It is those skeptical of these decisions, such as I, who do his memory honor. I have not one smidgen of doubt that Abraham Lincoln could have gotten out of the Congress anything he wanted. Those who think otherwise do him a disservice.
The right to dissent is so fundamental to the American system as to be beyond debate, yet Lincoln went on to have more than 13,000 people arrested and hundreds of critical newspapers shut down. This was yet another assault the most basic values of our Constitution that I only mention in passing as yet another example of his gross overstepping of his constitutional authority, one which Lincoln himself even seems to acknowledge in his own writings on the subject.
The crux of this case against Lincoln centers on the legitimacy of his move to suspend Habeas. The right to know the charges against you is among the most fundamental rights of man, enshrined even in The Magna Carta.
It remains that his speech that July 4 was a gross misrepresentation. Just five years later, in Ex Parte Milligan, Chief Justice Salmon Chase, Lincoln’s own appointee, concluded that the government has all the powers within the Constitution necessary to preserve its existence. In essence, Chase was saying that Lincoln’s justification for his actions and his address to the Congress that July was a sham.
In other communications, one individual wrote to me that my argument is that the Constitution is not a suicide pact for the federal government and that he didn’t find it very compelling. My response is that it was even less a suicide pact for the individual states.
As for myself, I believe that, in spite of his soaring rhetoric his words were, ultimately, fraudulent. Abraham Lincoln betrayed everything that the American Republic was about. His actions spoke louder than his words, a phrase that he used in his July 4 speech. They laid the groundwork for the complete usurpation of constitutionally limited government in the twentieth century that came to fruition under Woodrow Wilson, Franklin D. Roosevelt and Lyndon Johnson.
George Bush, to his credit, has not jailed political opponents yet but the precedent is there. Does anyone truly believe that it isn’t?
I rest my case.
“Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact.”