Lincoln the 'dictator'.

• Author: Hutchinson, Dennis J.
• Position: Former American President Abraham Lincoln

1. 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. Lincoln explained that

   [t]he provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. (8) Later, campaigning vigorously for Zachary Taylor in 1848, Lincoln praised Taylor as someone who would be a passive agent of Congress, who would not use the veto except in extraordinary cases, and who would properly restore the presidency to its narrow scope.

   When Taylor won, Lincoln hoped for a plum appointment, but only the secretaryship of the Oregon territory was offered, and so he repaired to Springfield and private practice. His retirement from public life did not last long, and the Kansas-Nebraska Act of 1854 spurred his decision to return to politics. The Act provided that the question of whether slavery would exist in the territory, which stretched from what is now Kansas to the Canadian border including parts of what is now Montana, depended on "popular sovereignty."

   For Lincoln, who had been on the public record for almost twenty years condemning the "injustice and bad policy" (9) of slavery, the Act was an abomination--an abomination to the Northwest Ordinance, which had forbidden slavery in the area since 1787, a concomitant repeal of the Missouri Compromise of 1820, and an opportunity to expand slavery nationwide. To Lincoln, this was no less than repudiation of the founding principles of the nation embodied in the Declaration of Independence--all cynically wrapped in the mantle of indifference to slavery in deference to self-determination, a rather self-serving form of self-determination, to be sure. Lincoln was careful not to identify himself with the intensifying abolitionist cause: even as he condemned the Act, he said somewhat weakly, "If all earthly power were given me, I should not know what to do, as to the existing institution." (10) He even admitted that his "first impulse" was colonization, that is, to ship American slaves to Liberia, "their own native land," (11) which echoed a long-standing position of Henry Clay, then dead two years.

   Three years after the Kansas-Nebraska Act, the constitutional and political ground shifted under everyone's feet when the Supreme Court decided Dred Scott v. Sandford, (12) and found the Missouri Compromise unconstitutional as a taking of property in violation of the Fifth Amendment and as exceeding Congress's constitutional authority over the territories.

   Roger Brooke Taney's lead opinion in Dred Scott was ugly in tone and reach, and was meant to be. More to the point for Lincoln, the opinion--and whatever support it enjoyed within the Court--represented a threat to the principles and the very existence of the new Republican Party. First, by denying the power of Congress to preclude slavery in the territories, the decision on its face seemed to undermine the raison deter for the Party. If Congress could not prohibit slavery in the territories, was expansion of the system inevitable? Second, and worse, the decision was a dagger in the heart of Lincoln's rationale for the soul of the Constitution--that whatever set of procedures the document created, at base its purpose was to enforce the convictions of the revolutionary generation manifested in the Declaration of Independence, which contemplated the eventual extinction of slavery. Lincoln eventually captured his larger vision, not surprisingly, in vivid image with Biblical provenance:

   the principle of "Liberty to all" ... in our Declaration of Independence ... has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple--not the apple for the picture. (13) To Lincoln, Taney's Dred Scott judgment turned the Declaration of Independence into the by-laws of a white man's club. Blacks could not be citizens, Taney wrote, because "[t]hey had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit." (14) The opinion was built by inference, assertion, and a very selective survey of the historical record. (After all, several post-Revolution states had granted citizenship to blacks, with full voting rights and civic status.) One can only imagine Lincoln's reaction as he read the bitter confection Taney created. Lincoln took the law seriously, but by 1857 he may have viewed constitutional law in the Supreme Court as a mug's game.

   The Court was dominated by seven Democrats, including five who had been in the Dred Scott majority. The same Taney who so forcefully reported the result in Dred Scott had declared only a few years earlier in Prigg v. Pennsylvania (15) that the Constitution required non-slave owners to vindicate the interests of slave masters, notwithstanding a complete absence of textual direction other than the Fugitive Slave Clause, which seemed to require Congress to detail who owed whom what and under what circumstances. The silver frame was devouring the picture.

   Stephen A. Douglas, Lincoln's opponent for the Senate from Illinois in 1858, thought--wrongly, and not for the first time--that he could out-fox Lincoln by alleging that the Republicans, a "sectional party," would "resist" Dred Scott. The charge was bogus, and Lincoln properly dismissed it as such.

   He...