“THE PERPETUATION OF OUR POLITICAL INSTITUTIONS”: LINCOLN ...

“THE PERPETUATION OF OUR POLITICAL
INSTITUTIONS”: LINCOLN, THE POWERS OF THE
COMMANDER IN CHIEF, AND THE CONSTITUTION

Michael Les Benedict*

INTRODUCTION

Late in January 1838, gangly young Abraham Lincoln, an up-and-
coming young lawyer in Springfield, Illinois, agreed to deliver a lecture
at the town’s vibrant cultural center, the Young Men’s Lyceum.
Lincoln was worried that Americans were giving up on the ideal of the
rule of law. The previous two years had seen a number of vigilante
actions, including bloody riots aimed at immigrants, African Americans,
and abolitionists. He warned against a “growing disposition to
substitute the wild and furious passions, in lieu of the sober judgments
of Courts; and the worse than savage, mobs for the executive ministers
of justice.”1 Lincoln was worried about the widespread support for
Andrew Jackson, despite his high-handed withdrawal of government
funds from the national bank in disregard of the law, his contempt for
the rights of Native Americans as defined by the Supreme Court, and
his past abuses of authority as military commander in the Seminole
War. Jackson’s career presaged the rise of some worse demagogue, he
feared—some “Alexander, a Caesar, or a Napoleon,”2 who would scorn
the constrained public offices established by the Constitution.

Lincoln doubted that the constitutional structures of American
government provided adequate safeguards, nor did he rely on the courts
to counteract such a usurper. The only assurance against such a disaster
was public commitment to law, he warned. “Let every American, every
lover of liberty . . . swear . . . never to violate in the least particular, the
laws of the country; and never to tolerate their violation by others,” he
declaimed. “Let reverence for the laws . . . become the political religion

* Michael Les Benedict is Emeritus Professor of History at The Ohio State University, where
he was also adjunct professor at the Michael E. Moritz College of Law.

1 ABRAHAM LINCOLN, ADDRESS BEFORE THE YOUNG MEN’S LYCEUM OF SPRINGFIELD,
ILLINOIS, (Jan. 27, 1838), reprinted in 1 THE COLLECTED WORKS OF ABRAHAM LINCOLN 108
(Roy P. Basler ed., 1953) [hereinafter COLLECTED WORKS].

2 Id. at 114.

927

928 CARDOZO LAW REVIEW [Vol. 29:3

of the nation.” 3
Later, as a young Whig congressman, Lincoln insisted that

Congress, rather than the president, best represented the interests and
ideas of the nation. Presidents should refrain from using their influence
or their veto power to control congressional deliberations. He was
particularly worried about the ability of presidents to use their power as
commander in chief of the armed forces to drag the country into war, as
he believed James K. Polk had done with Mexico.4

How ironic that the actions of the same man would be praised for
arguing “cogently and at length that the Constitution . . . may be wisely
sacrificed to preserve the people,”5 and would be cited as authority to
justify presidential disregard of domestic statutes and international law.
How ironic that political scientists and historians would describe his
“constitutional usurpations,”6 and characterize his actions in dealing
with the crisis as “constitutional dictatorship.”7 Even Arthur M.

3 Id. at 112 (emphasis omitted).
4 ABRAHAM LINCOLN, SPEECH IN U.S. HOUSE OF REPRESENTATIVES ON THE PRESIDENTIAL
QUESTION (July 27, 1848), reprinted in 1 COLLECTED WORKS, supra note 1, at 501, 504-505;
Letter from Abraham Lincoln to William H. Herndon (Feb. 15, 1848) in 1 COLLECTED WORKS,
supra note 1, at 451.
5 HENRY PAOLUCCI & RICHARD C. CLARK, PRESIDENTIAL POWER AND CRISIS
GOVERNMENT IN THE AGE OF TERRORISM 29 (2003).
6 JAMES MACGREGOR BURNS, PRESIDENTIAL GOVERNMENT: THE CRUCIBLE OF
LEADERSHIP 36 (1965).
7 Although William Archibald Dunning referred to Lincoln’s “temporary dictatorship” as
early as 1898 and William B. Weeden claimed he “reached the powers of a dictator” in 1906, the
notion of Lincoln as “constitutional dictator” was most fully developed in CLINTON L. ROSSITER,
CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES (1948).
See also WILLIAM ARCHIBALD DUNNING, ESSAYS ON THE CIVIL WAR AND RECONSTRUCTION
AND RELATED TOPICS 20-21 (1897); WILLIAM B. WEEDEN, WAR GOVERNMENT, FEDERAL AND
STATE IN MASSACHUSETTS, NEW YORK, PENNSYLVANIA AND INDIANA, 1861-1865, at x (1906).
Rossiter’s formulation strongly and permanently influenced political scientists. EDWARD S.
CORWIN referred to “Lincoln’s ‘Dictatorship’” in his classic THE PRESIDENT: OFFICE AND
POWERS, 1787-1984: HISTORY AND ANALYSIS OF PRACTICE AND OPINION 20 (Randall W. Bland
et al. eds., 5th rev. ed. 1984). Lincoln’s were the key precedents Corwin cited in Wilson and
“Precedents for Presidential Dictatorship,” THE NEW REPUBLIC, June 9, 1917, at 153-55,
reprinted in PRESIDENTIAL POWER AND THE CONSTITUTION: ESSAYS BY EDWARD S. CORWIN
23, 23-24 (Richard Loss ed., 1976). RICHARD M. PIOUS referred to Lincoln’s “constitutional
dictatorship” in his 1979 textbook THE AMERICAN PRESIDENCY 57 (1979), and in a revision, THE
PRESIDENCY 81-83 (1996), as have JAMES W. DAVIS in THE AMERICAN PRESIDENCY 24 (2d ed.
1995), and LOUIS W. KOENIG in THE CHIEF EXECUTIVE 7 (6th ed. 1996). Political scientists and
lawyers have regularly claimed that to save the Union, Lincoln acted illegally or extra-
constitutionally. See, e.g., GOTTFRIED DIETZE, AMERICA’S POLITICAL DILEMMA: FROM
LIMITED TO UNLIMITED DEMOCRACY 17-62 (1968); FERDINAND LUNDBERG, CRACKS IN THE
CONSTITUTION 25 (1980); DWIGHT G. ANDERSON, ABRAHAM LINCOLN: THE QUEST FOR
IMMORTALITY 8, 10-11, 166, 219 (1982); ARTHUR SELWYN MILLER, DEMOCRATIC
DICTATORSHIP: THE EMERGENT CONSTITUTION OF CONTROL 77-80 (1981); KOENIG, supra, at
330; FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR: THE WAR
POWER OF CONGRESS IN HISTORY AND LAW, at vii (1986); DANIEL C. DILLER & STEPHEN H.
WIRLS, Commander in Chief, in DILLER AND WIRLS, POWERS OF THE PRESIDENCY 163, 169 (2d
ed., 1997); HAROLD J. KRENT, PRESIDENTIAL POWERS 140 (2005); Frank J. Williams, “Doing
Less” and “Doing More”: The President and the Proclamation—Legally, Militarily, and

2008] LINCOLN 929

Schlesinger, Jr., who certainly appreciated Lincoln’s greatness, would
refer to him as a “despot.”8

The Civil War was a formative time in the development of the
notion of a presidential war power as commander in chief. Indeed, the
concept of a presidential “war power” was first articulated during the
era.9 Moreover, Abraham Lincoln’s exercise of the war power retains
special precedential value today, because of the prestige of Lincoln
himself. As presidential historian Clinton Rossiter observed, “Lincoln
is the supreme myth, the richest symbol in the American experience. . . .
[W]ho . . . can measure the strength that is given to the President
because he holds Lincoln’s office, lives in Lincoln’s house, and walks
in Lincoln’s way?”10

One reason that Lincoln’s example remains so influential is that he
wielded power as commander in chief so successfully, achieving the
national government’s war aims. His decisions were the single most
important factor in saving the Union. If he had not taken the steps he
did, without congressional authorization, especially the decision to
initiate coercion immediately after the firing upon Fort Sumter, it is
quite likely that secession would have succeeded. Lincoln’s
accomplishment reinforces both the legitimacy and efficacy of a broad
construction of presidential war powers as commander in chief. Equally
important, Lincoln’s record demonstrates that such powers can be
wielded aggressively by a president with the right character without
seriously eroding democracy and liberty. As Judge Williams has put it,
“[w]hat made Lincoln a successful commander in chief was his

Politically, in THE EMANCIPATION PROCLAMATION: THREE VIEWS 48, 55 (Harold Holzer et al.
eds., 2006). Some historians do the same. See, for a present-day example, American President:
President Abraham Lincoln: Impact and Legacy,
http://www.millercenter.virginia.edu/Ampres/essays/lincoln/biography/9 (last visited October 15,
2007); see also James G. Randall, Lincoln in the Role of Dictator, 28 S. ATLANTIC Q. 236 (1929)
(comparing Lincoln to a dictator).

8 In The Imperial Presidency, Arthur Schlesinger seemed to interpret Lincoln’s actions to
have been extra-constitutional, despite Lincoln’s effort to constitutionalize them under the rubric
of “war powers.” ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 58-67 (Houghton
Mifflin 1989) (1973). Schlesinger referred to him as a “despot.” Id. at 59. Schlesinger has
remained ambivalent, declaring in a 1988 lecture that “Of course, Lincoln was far from a
dictator,” but then immediately adding that he had “assumed quasi-dictatorial powers.” ARTHUR
M. SCHLESINGER, JR., WAR AND THE CONSTITUTION: ABRAHAM LINCOLN AND FRANKLIN D.
ROOSEVELT 15-16 (1988). In 2004, he stated flatly, “Both Lincoln and [Franklin Delano]
Roosevelt undertook acts they knew to go beyond the Constitution.” ARTHUR M. SCHLESINGER,
JR., WAR AND THE AMERICAN PRESIDENCY 51 (2004).

9 Schlesinger points out that before the Civil War, discussions referred to the war power of
the government. Lincoln’s “innovation was to attach this ‘tremendous’ war power to the
presidency.” SCHLESINGER, IMPERIAL PRESIDENCY, supra note 8, at 60.

10 CLINTON ROSSITER, THE AMERICAN PRESIDENCY 94 (3d ed., Johns Hopkins University
Press 1987) (1956). Lincoln consistently tops the list of great presidents in polls of historians and
political scientists. See JAMES P. PFIFFNER, THE MODERN PRESIDENCY 233-35 (tbl. 8-2) (3d ed.
2000).

930 CARDOZO LAW REVIEW [Vol. 29:3

constitutional ‘bending’ within the framework of his wise, honest,
restrained, inspirational temperament.”11 Thus, every study of the
president’s war power is replete with references to Lincoln.12

But those who stress Lincoln’s willingness to disregard
constitutional limitations in the Civil War crisis have it wrong. Lincoln
did exercise the war powers of the presidency aggressively, but he never
claimed the right to transcend constitutional limitations or to escape
democratic control. Indeed, he was constrained by the very popular
commitment to the rule of law that he had identified as the only security
against presidential despotism.

I. LINCOLN’S EXERCISES OF THE WAR POWER AS COMMANDER IN CHIEF

A. Calling Up the Militia and Volunteers, and Increasing the Size
of the Army

Article II, section 3 of the Constitution requires the president to
“take Care that the Laws be faithfully executed.”13 Section 2 makes the
president commander in chief of the armed forces. The Constitution
specifies some aspects of his authority in that capacity. For example, it
mandates that he appoint military officers. But beyond specifics, the
Constitution clearly envisions that the president as commander in chief
will be the authority carrying out congressional policies where the
Constitution gives Congress power relating to war and the military

11 FRANK J. WILLIAMS, JUDGING LINCOLN 57 (2002). See also, e.g., GEORGE ANASTAPLO,
ABRAHAM LINCOLN: A CONSTITUTIONAL BIOGRAPHY 251-56 (1999); DANIEL FARBER,
LINCOLN’S CONSTITUTION 196-200 (2003); Andrew C. McLaughlin, Lincoln, the Constitution,
and Democracy, 47 INT’L J. ETHICS 1 (1936); Randall, supra note 7, at 241-43; SCHLESINGER,
IMPERIAL PRESIDENCY, supra note 8, at 458-59.

12 For examples, see the indexed references to Lincoln in CLARENCE A. BERDAHL, WAR
POWERS OF THE EXECUTIVE IN THE UNITED STATES (photo. reprint 2003) (1921); CORWIN, THE
PRESIDENT, supra note 7, at 263-69 (stating on page 264 that “[t]he sudden emergence of the
‘Commander in Chief’ clause . . . occurred almost overnight” under Lincoln); Corwin, Wilson
and ‘Precedents for Presidential Dictatorship,’ supra note 7, at 23 (“The true nature of the
presidential prerogative in war time was comprehended by Lincoln perfectly.”); DILLER AND
WIRLS, Commander in Chief, in DILLER AND WIRLS, supra note 7, at 168-70 (“President
Lincoln’s extraordinary exercise of power during the Civil War demonstrated how far the
authority of the presidency could be expanded in wartime.”); DAVIS, supra note 7, at 222-23
(Lincoln “erased forever [the] narrow interpretation of the president’s power as commander in
chief.”); KOENIG, supra note 7, at 244-45 (referring to the “Lincolnian Pattern” as one of the two
justifications for presidential authority in wartime); KRENT, supra note 7, at 113-14; THE
ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF 77-89 (Ernest R. May ed.,
1960). Even a book titled Commanders in Chief: Presidential Leadership in Modern Wars lists
eight references to Lincoln in its index, more than the number to Jimmy Carter, Gerald Ford, or
Ronald Reagan. JOSEPH G. DAWSON, COMMANDERS IN CHIEF: PRESIDENTIAL LEADERSHIP IN
MODERN WARS (1993).

13 U.S. CONST. art. II, § 3.

2008] LINCOLN 931

establishment.14
Making the president commander in chief also implies a power on

his or her part to make strategic and tactical decisions in any conflict.
Just what constitutes an appropriate exercise of this power and whether
implying its existence deprives Congress of similar authority are
controversial questions, and ones that Lincoln, President Andrew
Johnson, and Congress had to face during the war and Reconstruction.

In 1861, the first session of the Thirty-Seventh Congress was to
convene, as customary, at the beginning of December.15 Article II,
section 3 authorizes the President to call either house of Congress or
both into session “on extraordinary Occasions.”16 The secession crisis
surely qualified, but Lincoln chose not to call Congress into session
immediately upon his inauguration in part because several states had not
yet held elections to choose representatives17 but also because he did not
want to renew the wrangling over compromises that had characterized
the previous Congress.18

By the time South Carolina’s militia attacked Fort Sumter on April
12, 1861, the last elections had been held, but Lincoln still did not call
the new Congress into session. He knew that doing so would preclude a
forceful response to the provocation. Unionists in the upper South and
border states had been barraging him and other Republican leaders with
pleas to avoid hostilities. As historian Daniel Crofts has shown, they
were in a strong position to marginalize the secessionist Democratic
parties in their states, but only if they could secure some compromise on
the slavery issue.19 They had moved heaven and earth to forge one in
the session of Congress that had just adjourned. They would certainly
do the same in the special session if Lincoln called one immediately.
As long as there was a chance for a peaceful resolution to the crisis,

14 Article I, section 8 gives Congress the responsibility for declaring war; raising and
supporting the armed forces of the United States; and organizing, disciplining, and calling up the
state militias for national purposes. Given the Constitution’s designation of the president as
commander in chief, many of these powers must be exercised by instructing the president to carry
out congressional mandates. See U.S. CONST. art. I, § 8, cl. 1.

15 Article I, section 4 specified the first Monday in December as the date Congress should
assemble unless altered by law, which was rarely done. See U.S. CONST. art. I, § 4, cl. 2.

16 Id. at art. II, § 3.
17 James McPherson writes that Lincoln could not have called Congress into session if he had
wanted to, because congressmen were elected in the spring of 1861. JAMES M. MCPHERSON,
THIS MIGHTY SCOURGE: PERSPECTIVES ON THE CIVIL WAR 211 (2007). This was true only of
some states, and only of Ohio among the largest. Most representatives had been elected the
previous fall.
18 DAVID HERBERT DONALD ET AL., THE CIVIL WAR AND RECONSTRUCTION 134-38 (2001);
JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 248-57 (1988). For
detailed accounts, see DAVID M. POTTER, LINCOLN AND HIS PARTY IN THE SECESSION CRISIS
(1942) and KENNETH M. STAMPP, AND THE WAR CAME: THE NORTH AND THE SECESSION
CRISIS, 1860-1861 (1950).
19 DANIEL CROFTS, RELUCTANT CONFEDERATES: UPPER SOUTH UNIONISTS IN THE
SECESSION CRISIS (1989).

932 CARDOZO LAW REVIEW [Vol. 29:3

they could stave off the secessionists, they insisted. Representatives
from all the states of the Border and Upper South would be present,
urging compromise upon their colleagues. Moreover, some
congressmen surely would insist that they must take formal action to
recognize a state of war. Such an effort would raise tangled issues of
the status of the southern states and their citizens, and southern
unionists would be sure to oppose it. Under these circumstances, was it
conceivable that Congress would act quickly to increase the size of the
armed forces? Even if it did act, might it prefer to utilize the militia?

Could Lincoln act while Congress debated? James Buchanan had
insisted that the president had no such power.20 Acting forcefully
without congressional authority while it was in session would be far
more difficult than acting forcefully while it was adjourned. In sum,
calling Congress would have been a decisive turn towards conciliation,
eschewing coercion as an alternative and possibly disrupting the
Republican party itself.

So Lincoln called a special session for July 4.21 That meant
Congress would not be in session formally to recognize a state of war or
insurrection. It could not pass legislation increasing the size of the
armed forces. It could not pass other emergency legislation, or delegate
emergency authority to the president—if the Constitution permitted
such a delegation of legislative power in the first place. His decision
raised the question of what authority existing laws and the Constitution
gave him to act.

The Constitution imposes an obligation on the president to
preserve the Constitution and enforce the laws of the United States. To
fulfill that responsibility, on April 15 Lincoln issued a proclamation
calling for 75,000 men to suppress the rebellion in conformity with the
Militia Act of 1795, which authorized the president to call out the
militia whenever the laws of the United States were opposed by
“combinations too powerful to be suppressed by the course of ordinary
judicial proceedings.”22 Lincoln used the identical language in his
proclamation.23 Militia raised under this call rushed from
Massachusetts, overcame resistance in Maryland, and reached
Washington in time to protect the vulnerable capital.

Up to this point, Lincoln reported later, “all was believed to be

20 For Buchanan’s constricted view of presidential power, see James Buchanan, Fourth
Annual Message to Congress (Dec. 3, 1860), in 7 A COMPILATION OF THE MESSAGES AND
PAPERS OF THE PRESIDENTS 3157, 3165-66 (James D. Richardson ed., Bureau of National
Literature, 1897) [hereinafter MESSAGES AND PAPERS]. Buchanan denied that Congress had
constitutional authority to coerce seceding states as well. Id. at 3166-67.

21 Abraham Lincoln, Proclamation (Apr. 15, 1861), in 7 MESSAGES AND PAPERS, supra note
20, at 3214, 3214.

22 Militia Act of 1795, ch. 36, 1 Stat. 424 (1795).
23 Lincoln, supra note 21, at 3214-15.

2008] LINCOLN 933

strictly legal.”24 But Lincoln was not willing to rely on the state militia
to suppress the resistance. He could have done so. It was not that he
needed more men than the states could provide. Although state
governments had allowed the militia to atrophy, several governors had
quickly been able to organize 80,000 men. New York, Pennsylvania,
and Massachusetts alone had responded with enough men to supply his
earlier call. All the other northern states were raising militia and
arranging for funds to support them.25 The real problem was with the
Militia Act itself, which set the terms of service at only three months.
Moreover, even if called up for federal service, the militia was
inherently a state institution; it was inevitable that there would be
conflict between state and federal authority over its use and
maintenance.26 But no statute authorized Lincoln to increase the size of
the U.S. armed forces.

Unwilling to rely on the Militia Act, on April 21 Lincoln and his
Cabinet formally decided that the president should go beyond the
“existing means, agencies, and processes which Congress had
provided, . . . availing [himself] of the broader powers conferred by the
Constitution [—not the statute—] in cases of insurrection.”27 On May 3
he issued a new proclamation calling for 42,000 volunteers to serve in
the United States armed forces for as long as three years.28

This time there was no statute whose language he could quote or
paraphrase. Nor did he refer to the necessity of enforcing the laws.
Instead, he referred to “existing exigencies” that demanded “immediate
and adequate measures for the protection of the National Constitution
and the preservation of the National Union.”29 That language harkened
to the presidential oath specified by Article II, section 1: ”I do solemnly
swear (or affirm) that I . . . will to the best of my Ability, preserve,
protect and defend the Constitution of the United States.” For that
purpose, he said, “military force in addition to that called forth” by his
prior message “appears to be indispensably necessary” and he reiterated
his status as “Commander in Chief of the Army and Navy” in calling it

24 Abraham Lincoln, Special Session Message (July 4, 1861), in 7 MESSAGES AND PAPERS,
supra note 20, at 3221, 3225.

25 FRED ALBERT SHANNON, 1 THE ORGANIZATION AND ADMINISTRATION OF THE UNION
ARMY, 1861-1865, at 31-32, 34-35 (1928).

26 For problems with relying on the militia in the first part of the nineteenth century—and
Americans’ commitment to it despite those problems—see JOHN K. MAHON, HISTORY OF THE
MILITIA AND THE NATIONAL GUARD 63-96 (1983).

27 Abraham Lincoln, Message to the Senate and House of Representatives (May 26, 1862), in
8 MESSAGES AND PAPERS, supra note 20, at 3278, 3279; 4 JOHN G. NICOLAY & JOHN HAY,
ABRAHAM LINCOLN: A HISTORY 136-37 (1886). Lincoln misidentified the date of the Cabinet
meeting as April 20.

28 Abraham Lincoln, A Proclamation (May 3, 1861), in 7 MESSAGES AND PAPERS, supra note
20, at 3216, 3217.

29 Id. at 3216.

934 CARDOZO LAW REVIEW [Vol. 29:3

for it.30 So when calling for volunteers to fill a unilaterally declared
increase in the size of the armed forces, Lincoln relied on his
presidential war powers rather than a more narrowly focused obligation
to enforce the laws.

“These measures, whether strictly legal or not,” Lincoln conceded,
“were ventured upon under what appeared to be a popular demand and a
public necessity.”31 He announced that the call for volunteers “together
with the plan of organization adopted for the volunteer and for the
regular forces hereby authorized, [would] be submitted to Congress as
soon as assembled.”32 In his special message to Congress when it finally
convened July 4, Lincoln acknowledged that he had taken steps without
statutory authority, “trusting then, as now, that Congress would readily
ratify” his actions.33 Congress obliged a month later, declaring:

That all the acts, proclamations, and orders of the
President . . . respecting the army and the navy of the United
States, and calling out or relating to the militia or volunteers
from the States, are hereby approved and in all respects
legalized and made valid . . . as if they had been issued and
done under the previous express authority and direction of
the Congress of the United States.34
Even before that it had authorized an expansion of the armed forces to
500,000 men.35

B. Blockade

A few days after his initial call for militia troops, Lincoln had
ordered a blockade of the ports of the states that had seceded by that
time. He added others in succeeding weeks.36 He claimed to be acting
“in pursuance of the laws of the United States and of the law of
nations,”37 but it is not clear just what federal law he was referring to.
Moreover, the rule is that a government closes its own ports and
blockades those of an enemy nation.38 In either case, the steps appeared

30 Id. at 3217.
31 Lincoln, supra note 24, at 3225.
32 Lincoln, supra note 28, at 3217.
33 Lincoln, supra note 24, at 3225.
34 Act of Aug. 6, 1861, ch. 63, 12 Stat. 326 (1861).
35 Act of July 22, 1861, ch. 9, 12 Stat. 268 (1861).
36 Abraham Lincoln, A Proclamation (Apr. 19, 1861), in 7 MESSAGES AND PAPERS, supra
note 20, at 3215, 3215-16; Abraham Lincoln, A Proclamation (Apr. 27, 1861), in 7 MESSAGES
AND PAPERS, supra note 20, at 3216; Abraham Lincoln, A Proclamation (May 10, 1861), in 7
MESSAGES AND PAPERS, supra note 20, at 3217, 3218.
37 Lincoln, A Proclamation (Apr. 19, 1861), supra note 36, at 3215.
38 Stuart Anderson, 1861: Blockade vs. Closing The Confederate Ports, 41 MIL. AFF. 190,
190 (1977).

2008] LINCOLN 935

to required congressional action—a declaration of war to justify a
blockade or a statute to close American ports, such as the Embargo Acts
that Thomas Jefferson secured to close American ports to British and
French shipping during the Napoleonic Wars.39 With Congress
adjourned, Lincoln had to act on his own. When it convened in special
session, Congress quickly passed a law authorizing the blockade,40 and
Lincoln relied upon it for authority in all later proclamations on the
subject.41

C. Expenditures Unauthorized by Statute

In the first weeks of the war, Lincoln directed federal officials to
purchase or charter and arm steamships without following procedures
specified by statute. He ordered Secretary of War Simon Cameron to
authorize state officials to arrange transport for soldiers and munitions
until normal communications were restored between the Washington
and the North. He instructed Treasury Secretary Salmon P. Chase to
advance two million dollars to private parties in New York to pay for
any requisitions necessary to defend the government. Congress was not
in session to authorize such actions, but so many secessionists still held
federal offices that it was impossible to act through normal channels.
As Lincoln explained: “I believe that by these and other similar
measures taken in that crisis, some of which were without any authority
of law, the Government was saved from overthrow.”42

D. Suspension of Habeas Corpus

The militia Lincoln had called out in his proclamation of April 15
rushed down from Massachusetts to protect Washington. They met
resistance in Baltimore, where they had to cross the city on foot from
one railroad station to another. A mob hurled bricks and paving stones,
firing pistol shots. A few soldiers shot back, and the enraged mob
attacked with every weapon people could find. After the soldiers fought
their way to Washington-bound railway, city authorities ordered the
bridges destroyed on the railroad line from the North. Secessionists tore

39 Embargo Acts, ch. 5, 2 Stat. 451 (1807); ch. 8, 2 Stat. 453 (1808); ch. 33, 2 Stat. 473
(1808).

40 Act of July 13, 1861, ch. 3, 12 Stat. 255 (1861).
41 See, e.g., Abraham Lincoln, A Proclamation (May 12, 1862), in 8 MESSAGES AND PAPERS,
supra note 20, at 3290, 3290-91; Abraham Lincoln, A Proclamation (Feb. 18, 1863), in 8
MESSAGES AND PAPERS, supra note 20, at 3417, 3417-18; Abraham Lincoln, A Proclamation
(Nov. 19, 1864), in 8 MESSAGES AND PAPERS, supra note 20, at 3431.
42 Lincoln, supra note 27, at 3280.

936 CARDOZO LAW REVIEW [Vol. 29:3

up tracks and telegraph wires, cutting communications to the capital.
The governor called the secessionist-dominated state legislature into
session.43 On April 25 Lincoln issued an executive order authorizing
the commanding general of the army, Winfield Scott, to suspend the
privilege of the writ of habeas corpus along any line between
Philadelphia and Washington where soldiers met resistance.44 In July
he extended the area to New York, and in October all the way to
Bangor, Maine.45 Neither of these orders had been made public. But in
May Lincoln issued an official proclamation authorizing the
commander of armed forces along the coast of Florida to suspend the
writ.46 In December he authorized the writ to be suspended throughout
Missouri, although the military there had declared martial law, made
arrests, and instituted military commissions as early as May, with
Lincoln’s knowledge.47 In April 1862 he authorized General John A.
Dix to assume control of the Baltimore city police and, if necessary,
replace them with military police. At the same time he authorized Dix
to suspend the writ of habeas corpus “and perform all military power,
function, and authority that he may deem proper . . . to secure obedience
and respect to the authority and Government of the United States.”48 In
August 1862 he suspended the writ throughout the nation in the case of
anyone arrested for “disloyal practices” or draft evasion.49

Not until Mach 3, 1863 did Congress finally pass a law suspending
the privilege of the writ of habeas corpus—the Habeas Corpus Act of
1863.50 On September 15, 1863, Lincoln proclaimed the suspension of
the privilege throughout the United States for the war’s duration, for the
first time acting under statutory authority.51 In July, 1864, he relied
upon the Habeas Corpus Act to declare martial law in Kentucky.52

43 For an overview, see MCPHERSON, supra note 18, at 285-87. For a more detailed account,
see DEAN SPRAGUE, FREEDOM UNDER LINCOLN 1-17 (1965).

44 Abraham Lincoln, Order to the Commanding General of the Army of the United States
(Apr. 27, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3219.

45 Abraham Lincoln, Order to the Commanding General of the Army of the United States
(July 2, 1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3220.

46 Abraham Lincoln, A Proclamation (May 10, 1861), in 7 MESSAGES AND PAPERS, supra
note 20, at 3217, 3217-18.

47 Abraham Lincoln, Executive Orders (Dec. 2, 1861), in 8 MESSAGES AND PAPERS, supra
note 20, at 3300, 3300. For the story in Missouri, see MARK E. NEELY JR., THE FATE OF
LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES 32-50 (1991); SPRAGUE, supra note 43, at
57-94.

48 Abraham Lincoln, Executive Order (Apr. 5, 1862), in 8 MESSAGES AND PAPERS, supra
note 20, at 3313.

49 Abraham Lincoln, Executive Order (Aug. 8, 1862), in 8 MESSAGES AND PAPERS, supra
note 20, at 3322.

50 Habeas Corpus Act of 1863, ch. 81, 12 Stat. 755 (1863).
51 Abraham Lincoln, A Proclamation (Sept. 15, 1863), in 8 MESSAGES AND PAPERS, supra
note 20, at 3371, 3371-72.
52 Abraham Lincoln, Proclamation (July 5, 1864), in 8 MESSAGES AND PAPERS, supra note
20, at 3420, 3420-22.

2008] LINCOLN 937

The suspension of the writ of habeas corpus led to the arrest and
imprisonment of thousands of civilians.53 Mark E. Neely has performed
the most exhaustive inquiry of the chaotic and incomplete records.
Although one can never ascertain the correct count, he found the
traditional number of 13,535 military arrests of civilians to be a gross
underestimate.54 Neely did not distinguish between those arrested
before March 3, 1863, when the military acted on Lincoln’s sole
authority, and afterwards, when Lincoln’s orders and proclamations
rested on the authority of the Habeas Corpus Act as well. The numbers
make little difference. Lincoln claimed that his obligations as
commander in chief justified him in suspending habeas corpus, and he
acted on that claim. When he ordered the prisoners to be paroled upon
an oath that they would not render aid or comfort to those in rebellion,
he excepted any “whose release . . . may be deemed incompatible with
the public safety.”55 He appointed a two-person special commission,
consisting of a military officer and a civilian, to determine whether
those who remained in custody should be released, continue to be held,
or be turned over to civil courts for trial.56

E. Trial of Civilians by Military Commission

Lincoln went beyond the mere suspension of the writ of habeas
corpus. “As a necessary measure” for suppressing the rebellion, he
subjected all its “aiders and abettors” and “all persons discouraging
volunteer enlistments, resisting militia drafts, or guilty of any disloyal
practice affording aid and comfort to rebels against the authority of the
United States” to trial and punishment by military commission.57

53 For studies of the Lincoln administration’s internal security program, see SPRAGUE, supra
note 43, which takes a civil-libertarian approach that stresses abuses, and NEELY, supra note 47,
which concludes that, despite abuses, the program was targeted at securing southern and border
states and enforcing the draft.

54 Id. at 130-31.
55 Abraham Lincoln, Executive Order No. 1, Relating to Political Prisoners (Feb. 14, 1862),
in 8 MESSAGES AND PAPERS, supra note 20, at 3303, 3304-05.
56 Abraham Lincoln, Executive Order (Feb. 27, 1862), in 8 MESSAGES AND PAPERS, supra
note 20, at 3310.
57 Abraham Lincoln, Proclamation (Sept. 24, 1862), in 8 MESSAGES AND PAPERS, supra note
20, at 3299-300. This proclamation had been preceded by War Department orders issued six
weeks before that had unleashed a wave of arbitrary arrests directing local constables and other
authorities to arrest and imprison anyone “who may be engaged, by act, speech, or writing” in
discouraging enlistments “or in any way giving aid and comfort to the enemy, or in any other
disloyal practice.” The orders authorized trial and punishment of those so arrested by military
commission. Mark E. Neely, the foremost historian of civil liberty in the Civil War, has called
the month following the issuance of the War Department orders the nadir of civil liberty during
the Civil War and one of the worst episodes of denial of civil liberties in American history. The
War Department reined the excesses in by a new order September 8. NEELY, supra note 47, at
51-65. Lincoln’s proclamation, worded with more restraint than the prior orders, was part of the

938 CARDOZO LAW REVIEW [Vol. 29:3

Congress never explicitly authorized such commissions. Military
commanders in Missouri had established them as incident to the
application of martial law. Lincoln had accepted their legitimacy,
requiring only that any death sentence be sent to him for final
approval.58 Existing records indicate that military commissions tried
over four thousand civilians during the course of the war and its
immediate aftermath—including those accused of conspiring with John
Wilkes Booth to assassinate Lincoln himself.59

F. Suppression of Newspapers

After an initial, largely successful effort to muzzle the influential
anti-war press in New York,60 there were only sporadic efforts to
control northern newspapers and publications during the Civil War, no
matter how critical of administration policies. Military commanders
and a few zealous U.S. attorneys arrested a number of editors, who were
denied the privilege of habeas corpus. Newspaper offices were mobbed
by outraged patriots after particularly egregious criticisms of the war.
But these were sporadic events; there was no organized and centralized
program of suppressing the opposition press.61

Only once did Lincoln initiate the suppression of a newspaper. In
May, 1864, the bitterly hostile Democratic organs the New York World
and (New York) Journal of Commerce “wickedly and traitorously”
printed a bogus presidential proclamation recounting military disasters
and spuriously calling for another 400,000 volunteers. Lincoln
furiously ordered the reluctant General Dix, now in command in New
York, to take control of the newspapers’ printing facilities; arrest their

process.
58 NEELY, supra note 47, at 32-35.
59 Id. at 129; ROY Z. CHAMLEE, LINCOLN’S ASSASSINS: A COMPLETE ACCOUNT OF THEIR

CAPTURE, TRIAL, AND PUNISHMENT (1990); Douglas Linder, The Trial of the Lincoln

Conspirators, in FAMOUS TRIALS (2002),

http://www.law.umkc.edu/faculty/projects/ftrials/lincolnconspiracy/lincolnconspiracy.html.
60 In the early months of the war a New York grand jury brought a presentment against

several New York newspapers that had used strong language to condemn Lincoln’s decision to

use force against the seceding states. However, the decision of Postmaster General Montgomery

Blair, sustained by an opinion of the attorney general, to refuse the use of the mails to journals

that disturbed the public peace or subverted the government, was far more effective. It led one of

New York’s leading Democratic newspapers, the New York News, to cease publishing and others

to soften their positions. But this was not justified as an exercise of the president’s war powers.

See JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 500-502 (1951);

SPRAGUE, supra note 43, at 141-49.
61 For a critical account of suppression of dissenting opinion in the North, see FRANK L.

KLEMENT, President Lincoln, the Civil War, and the Bill of Rights, 94 LINCOLN HERALD 10

(1992), reprinted in LINCOLN’S CRITICS: THE COPPERHEADS OF THE NORTH 24-38 (Steven K.

Rogstad ed., 1999). See also RANDALL, supra note 60, at 477-510; ROBERT S. HARPER,

LINCOLN AND THE PRESS (1951).

2008] LINCOLN 939

editors, owners, and publishers; and hold them for trial before a military
commission.62 Three days later Lincoln thought better of his actions,
and the offenders were released. The newspapers reopened for
business. A year earlier, Lincoln had acted with greater restraint,
countermanding General Ambrose Burnside’s order suppressing the
publication of the Peace Democrat-oriented Chicago Times.63

But Lincoln did not doubt that it was within the military authority
to take such actions. Military commanders in the border states and the
South, where there was active disloyalty, occasionally brought editors
who supported the Confederacy before military commissions. They
suppressed a few pro-Confederate organs, including leading newspapers
in important cities. In the border states, these actions took place early in
the war as part of the desperate effort of unionists to gain control.64
Lincoln early on affirmed his belief that such actions were legitimate.
When Missouri’s conservative Governor Hamilton R. Gamble protested
the suppression of pro-Confederate sheets there, Lincoln responded,
“When an officer in any department finds that a newspaper is pursuing a
course calculated to embarrass his operations and stir up sedition and
tumult, he has the right to lay hands upon it and suppress it . . . .”65
Furthermore, Lincoln did not call for any congressional legislation to
provide guidance.66

Lincoln acted under congressional authority to establish a
relatively inefficient system for censoring reports about military
operations and preparations. He also issued an executive order
authorizing the prosecution under the articles of war of anyone whose
reports “verbally or by writing, printing, or telegraphing” were given to
the enemy, either “directly or indirectly.”67 An exasperated General
William Tecumseh Sherman tried and failed to prosecute over-zealous
reporters in his command for, in effect, giving intelligence to the
enemy. In the end, little could be done but appeal to reporters’
patriotism.68

62 Abraham Lincoln, Proclamation (May 18, 1864), in 8 MESSAGES AND PAPERS, supra note
20, at 3438. See also HARPER, supra note 61, at 289-303.

63 HARPER, supra note 61, at 257-64.
64 See, for example, Sprague’s account of federal suppression of pro-Confederate newspapers
and editors in Missouri and Kentucky in 1861. SPRAGUE, supra note 43, at 93-94, 226-27, 230,
267-68.
65 8 NICOLAY & HAY, ABRAHAM LINCOLN, supra note 27, at 217.
66 An account of the Lincoln’s response to the complaints of conservative unionists in
Missouri may be found id., at 215-19.
67 Abraham Lincoln, Proclamation (Aug. 7, 1861), in 8 MESSAGES AND PAPERS, supra note
20, at 3240.
68 RANDALL, supra note 60, at 477-92.

940 CARDOZO LAW REVIEW [Vol. 29:3

II. LINCOLN’S JUSTIFICATIONS

Lincoln initially justified his actions as necessary to fulfill his
obligation to enforce the laws of the United States. His proclamations
calling forth the militia and blockading southern ports both began by
citing resistance to the laws of the United States.69 This was the
grounds on which he defended his suspension of the privilege of the
writ of habeas corpus despite Chief Justice Taney’s opinion in Ex parte
Merryman70 that the Constitution delegated that authority solely to
Congress. Lincoln argued: “The whole of the laws which were required
to be faithfully executed were being resisted and failing of execution in
nearly one-third of the States. . . . Are all the laws but one to go
unexecuted . . . lest that one be violated?”71

But Lincoln sought broader and firmer constitutional justification
for wide-ranging action. In his proclamation of May 3 calling for
volunteers to fill the ranks of an enlarged army and navy, he explicitly
linked his responsibility to execute the laws with his oath to preserve
and protect the Constitution. Furthermore, he interpreted preserving the
Constitution to mean preserving the Union it created, in effect declaring
himself the protector of the nation. He declared that he was acting “for
the protection of the National Constitution and the preservation of the
Union by the suppression of the insurrectionary combinations now
existing in several States for opposing the laws of the Union and
obstructing the execution thereof.”72 (In a later defense of his actions,
he described the rebellion as an “effort to destroy Union, constitution,
and law, all together.”73) By combining his obligation to enforce the
laws, to protect the Constitution, and to preserve the Union with his
status as commander in chief, Lincoln created a powerful source of
authority—the war powers of the president.

Lincoln insisted that he was obligated to exercise these war powers
to whatever extent necessary to preserve the Constitution and the nation.
If he had not acted on his own authority during the crisis following the
firing on Fort Sumter, he asked, would he not have violated his oath?
Did not the Constitution’s injunction that he preserve the Constitution
mandate action even in the absence of statutory authorization?74 As he

69 Lincoln, supra note 21, at 3214; Lincoln, Proclamation (Apr. 19, 1861), supra note 36, at
3215.

70 Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9,487).
71 Lincoln, supra note 24, at 3226. Lincoln immediately denied that the Constitution placed
the power of suspending the writ of habeas corpus solely in Congress. Id.
72 Lincoln, supra note 28, at 3216-17.
73 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), in 6
COLLECTED WORKS, supra note 1, at 260, 263.
74 Lincoln, supra note 24, at 3226. As James McPherson points out, Lincoln’s messages to

2008] LINCOLN 941

put it in an “enormously effective” public letter to critical New York
Democrats, he believed “that certain proceedings are constitutional
when, in cases of rebellion or Invasion, the public Safety requires them,
which would not be constitutional when, in absence of rebellion or
invasion, the public Safety does not require them.”75

The justices of the Supreme Court may not have agreed with the
specific applications of Lincoln’s doctrine of presidential war powers.
After the war was over, they would rule unconstitutional his use of
military commissions to try civilians in areas outside the zone of
combat, for example.76 But they conceded that such powers existed.
Sustaining his blockade of southern ports in The Prize Cases, the Court
held that an insurrection or invasion could precipitate a state of war
without a congressional declaration and that the president had inherent
authority to take actions necessary to fight it. Once a state of war
existed, the laws of war justified the proclamation of a blockade, and
“[t]hat the President, as the Executive Chief of the Government and
Commander-in-chief of the Army and Navy, was the proper person to
make such notification, has not been, and cannot be disputed.”77 The
president “is bound to take care that the laws be faithfully executed. He
is Commander-in-chief of the Army and Navy of the United States, and
of the militia of the several States when called into the actual service of
the United States,” the justices affirmed. “If a war be made by invasion
of a foreign nation, the President is not only authorized but bound to
resist force by force. He . . . is bound to accept the challenge without
waiting for any special legislative authority.”78 The same was true of
the rebellion. “This greatest of civil wars. . . . sprung forth suddenly
from the parent brain, a Minerva in the full panoply of war. The
President was bound to meet it in the shape it presented itself . . . .”79

Lincoln believed the obligations that the Constitution imposed
upon him justified his declaration of the blockade, his call for
volunteers, his emergency expenditure of funds without congressional
authorization, and his suspension of the privilege of the writ of habeas
corpus. It was conceivable that it might require him to emancipate
slaves behind rebel lines; it necessitated a reconstruction policy
designed to weaken southern resolve and foster loyalty.

Congress and letters to public figures were “broadcast” to the general public in the original
meaning of the word, which referred to wide dissemination of printed material. MCPHERSON,
supra note 17, at 216-17.

75 Letter from Abraham Lincoln to Erastus Corning and Others, supra note 73, at 267.
76 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
77 The Prize Cases, 67 U.S. (2 Black) 635, 666 (1863).
78 Id. at 668.
79 Id. at 668-69.

942 CARDOZO LAW REVIEW [Vol. 29:3

III. PRESIDENTIAL WAR POWER, THE EMANCIPATION PROCLAMATION,
AND RECONSTRUCTION

A. The Emancipation Proclamation

The call-ups, the blockade, and the suspensions of the privilege of
habeas corpus were at least clearly and directly related to waging war.
More controversial were assertions of presidential war power over
matters of broad public policy like slavery and Reconstruction.

It is well known that Lincoln was slow to take the momentous step
of freeing southern slaves, at least in comparison to most Republicans.
Nowhere were political and constitutional considerations more closely
intertwined. Throughout the war, Lincoln was adamant that only
military necessity to save the Union could justify him in taking such
action as commander in chief. While all indispensable means must be
taken to preserve the Union, “[w]e should not be in haste to determine
that radical and extreme measures, which may reach the loyal as well as
the disloyal, are indispensable.”80 Like many Republicans, Lincoln
assumed that there was an undercurrent of unionism in the South that
had been suppressed during the secession crisis, and that the loyalty of
many who had been swept into the secession movement by the passions
of the hour might be revived.81 His success in reinforcing unionists in
the Border States through a mixture of forceful military action and
reassurances regarding slavery confirmed his perception. Building on
this experience, Lincoln worked to establish loyal governments as
quickly as possible wherever Union forces established beachheads.82
Acting against slavery reduced the prospects for reviving loyalty and
reassuring southern unionism.83 It would weaken the prospects for
saving the Union, rather than strengthening them. From this
perspective, emancipation could not be justified as a military necessity.
In his famous public letter to New York Tribune editor Horace Greeley,
Lincoln explained, “I would save the Union. I would save it the shortest
way under the Constitution. . . . What I do about slavery and the colored
race, I do because I believe it helps to save the Union; and what I
forbear, I forbear because I do not believe it would help to save the
Union.”84 But if a policy of encouraging southern unionism failed to

80 Abraham Lincoln, First Annual Message to Congress (Dec. 3, 1861), in 8 MESSAGES AND
PAPERS, supra note 20, at 3245, 3256.

81 WILLIAM C. HARRIS, WITH CHARITY FOR ALL: LINCOLN AND THE RESTORATION OF THE
UNION 43 (1997); BROOKS D. SIMPSON, THE RECONSTRUCTION PRESIDENTS 17-27 (1998);
MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF SLAVERY, AND
THE THIRTEENTH AMENDMENT 25-27 (2001).

82 HARRIS, supra note 81, at 33-96.
83 Id. at 56.
84 Letter from Abraham Lincoln to Horace Greeley (Aug. 22, 1862), in 5 COLLECTED

2008] LINCOLN 943

end the war, other measures would become necessary. “I shall do less
whenever I shall believe what I am doing hurts the cause,” Lincoln
avowed, “and I shall do more whenever I shall believe doing more will
help the cause.”85

The response to Greeley illustrated Lincoln’s gift for articulating
what one might call “constitutional politics.” It stated an essentially
constitutional argument in political terms that he knew would be
attractive to voters. In fact, at the time he wrote it, he had already
decided that the situation dictated an emancipation policy, and he had
already drafted what became the Preliminary Emancipation
Proclamation.86

Lincoln made clear as early as March 1862 that military necessity
might force a policy of emancipation. In a message urging Congress to
pledge “pecuniary aid” to states undertaking a program of voluntary
emancipation, he warned southerners that “the Union must be
preserved, and hence all indispensable means must be employed.”87
The war would end as soon as southerners acknowledged national
authority, but if resistance continued, Lincoln warned, “it is impossible
to foresee all the incidents which may attend and all the ruin which may
follow it.” Such actions “as may seem indispensable . . . toward ending
the struggle must and will come.” In the context of a message about
emancipation, there could be little doubt about what the “impossible-to-
foresee” incidents of war were.88 Two months later, General David
Hunter declared slaves free within his command of the Department of
the South (Georgia, Florida, and South Carolina). Lincoln
countermanded the order, but again warned that emancipation might
become a wartime necessity. “[W]hether it be competent for me, as
Commander in chief of the Army and Navy, to declare the slaves of any
State or States free, and whether at any time, in any case, it shall have
become a necessity indispensable to the maintenance of the Government
to exercise such supposed power, are questions which, under my
responsibility, I reserve to myself,” he affirmed.89 When Maryland
Senator Reverdy Johnson, serving as intermediary for residents of
occupied Louisiana, relayed their complaints that General John S.
Phelps appeared to be promoting emancipation there, Lincoln responded
that they “know how to be cured of General Phelps”—by “simply . . .

WORKS, supra note 1, at 388, 388 (emphasis omitted).
85 Id. at 388-89 (emphasis omitted).
86 GEOFFREY PERRET, LINCOLN’S WAR: THE UNTOLD STORY OF AMERICA’S GREATEST

PRESIDENT AS COMMANDER IN CHIEF 203-206 (2004).
87 Abraham Lincoln, Message to Congress (Mar. 6, 1862), in 8 MESSAGES AND PAPERS,

supra note 20, at 3269, 3270.
88 Id. at 3270.
89 Abraham Lincoln, Proclamation (May 19, 1862), in 8 MESSAGES AND PAPERS, supra note

20, at 3292.

944 CARDOZO LAW REVIEW [Vol. 29:3

tak[ing] their place in the Union upon the old terms.” “If they can
conceive of anything worse than General Phelps, within my power,
would they not better be looking out for it? . . . I shall not surrender this
game leaving any available card unplayed,” he warned.90 Lincoln asked
a complaining Louisianan: “What would you do in my position? Would
you drop the war where it is? . . . Would you give up the contest,
leaving any available means unapplied?”91

Moreover, Lincoln had no doubt about the right to confiscate the
property of rebels, signing two confiscation statutes in 1861 and 1862.92
In the case of property other than slaves, he insisted that the
Constitution limited the forfeiture to the lifetime of the offender, forcing
Congress to acquiesce in an explanatory resolution.93 At first he
thought that the confiscation of slaves might be limited in the same way.
When General John C. Fremont, military commander in Missouri,
ordered the confiscation and emancipation of all slaves of secessionists
in the state in 1861, Lincoln countermanded the order. “If a
commanding General finds a necessity to seize the farm of a private
owner . . . he has the right to do so, and to so hold it, as long as the
necessity lasts; and this is within military law, because within military
necessity,” he wrote his friend and fellow-lawyer Orville H. Browning.
“But to say the farm shall no longer belong to the owner, or his heirs
forever . . . is purely political, without the savor of military law about it.
And the same is true of slaves. If the General needs them, he can seize
them, and use them; but when the need is past, it is not for him to fix
their permanent future condition.”94

On the same grounds, Lincoln was unsure whether the decision to
free confiscated slaves permanently was within his authority as
commander in chief. “I do not say Congress might not with propriety
pass a law, on the point . . . .”95 By the time Congress passed its second
Confiscation Act, which freed the slaves belonging to supporters of the
rebellion, Lincoln had resolved any doubts he had about Congress’s
power to emancipate slaves permanently. He signed the law, making
his constitutional justification clear: The language simply freeing
rebels’ slaves was, he said, “an unfortunate form of expression.” “It is
startling to say that Congress can free a slave within a State.” But it

90 Letter from Abraham Lincoln to Reverdy Johnson (July 26, 1862), in 5 COLLECTED
WORKS, supra note 1, at 342, 343.

91 Letter from Abraham Lincoln to Cuthbert Bullitt (July 28, 1862), in 5 COLLECTED WORKS,
supra note 1, at 344, 346.

92 Act of Aug. 6, 1861, ch. 60, 12 Stat. 319 (1861) (confiscating property used for
“Insurrectionary Purposes”); Act of July 17, 1862, ch. 195, 12 Stat. 589 (1862).

93 Abraham Lincoln, Message to Congress (July 17, 1862), in 8 MESSAGES AND PAPERS,
supra note 20, at 3286, 3286-88; Williams, supra note 7, at 54-62.

94 Letter from Abraham Lincoln to Orville H. Browning (Sept. 22, 1861), in 4 COLLECTED
WORKS, supra note 1, at 531, 531; see also PERRET, supra note 86, at 84-90.

95 Letter from Abraham Lincoln to Orville H. Browning, supra note 94, at 532.

2008] LINCOLN 945

could be done nonetheless. “[I]f it were said that the ownership of the
slave had first been transferred to the nation and that Congress had then
liberated him the difficulty would at once vanish.”96

By 1862 Lincoln concluded that as commander in chief he could
emancipate slaves if it became militarily necessary to save the Union.
But he always maintained the distinction between emancipating slaves
and abolishing slavery itself. Neither he nor Congress could do the
latter. When Congress required reorganized states to frame new
constitutions that abolished slavery as part of the Wade-Davis
Reconstruction bill, he cited the provision as one of the reasons he
refused to sign it. He was not prepared “to declare a constitutional
competency in Congress to abolish slavery in States.”97 That would
require a constitutional amendment.

By July 1862 Lincoln finally concluded that his conciliatory policy
on slavery was not bearing fruit and in fact was beginning to damage
the war effort. He told Secretary of State William H. Seward and
Secretary of the Navy Gideon Welles that “he had given it much
thought and had about come to the conclusion that [emancipation] was a
military necessity absolutely essential for the salvation of the Union.”98
As he told portrait artist Francis B. Carpenter later, “I felt that we had
reached the end of our rope on the plan of operations we had been
pursuing . . . .”99

The Preliminary Emancipation Proclamation of September 22,
1862 followed the pattern of prior announcements. Lincoln affirmed:
“[H]ereafter, as heretofore, the war will be prosecuted for the object of
practically restoring the constitutional relation between the United
States and each of the States and the people thereof....” Again he urged
voluntary, compensated emancipation upon border-state and southern

96 Lincoln, supra note 93, at 3286-88.
97 Abraham Lincoln, Proclamation (July 8, 1864), in 8 MESSAGES AND PAPERS, supra note
20, at 3423, 3424.
98 GIDEON WELLES, 1 DIARY OF GIDEON WELLES 70 (Howard K. Beale ed., W.W. Norton &
Co. 1960) (1911).
99 FRANCIS B. CARPENTER, SIX MONTHS AT THE WHITE HOUSE WITH ABRAHAM LINCOLN:
THE STORY OF A PICTURE 20-21 (1866). The story, which Carpenter first told in an 1865
magazine article, may exaggerate Carpenter’s intimacy with Lincoln. But if he was merely
reflecting common understandings, the attributed language certainly indicates that Lincoln had
made his constitutional justification clear to the public. Carpenter also quotes Lincoln as
explaining to a group of visitors in 1864, “I did not consider that I had a right to touch the ‘State’
institution of ‘Slavery’ until all other measures for restoring the Union had failed.” Id. at 76. As
historian Don Fehrenbacher observed, the length of the whole quotation “casts extra doubt upon
its authenticity as a reproduction of Lincoln’s words, but its substance seems credible enough.”
RECOLLECTED WORDS OF ABRAHAM LINCOLN 84 (Don E. Fehrenbacher & Virginia
Fehrenbacher eds., 1996). Carpenter and New York lawyer Edwards Pierrepont independently
quoted Lincoln as analogizing the decision to a game of cards. Pierrepont reported him as saying,
in a contemporaneous account to fellow lawyer Robert C. Winthrop, “It is my last card, and I will
play it and may win the trick.” ROBERT C. WINTHROP, JR., A MEMOIR OF ROBERT C. WINTHROP
229 (2d ed. 1897); see also CARPENTER, supra, at 20-21.

946 CARDOZO LAW REVIEW [Vol. 29:3

unionists. But direct action to emancipate slaves in the Confederacy
would be justified if the war continued into the new year. On January 1,
1863, all slaves in areas still in rebellion “shall be then, thenceforward,
and forever free.”100 The Preliminary Proclamation cited congressional
enactments freeing slaves captured from rebels or having run away to
federal lines and pointedly instructed the military to carry them out.
However, he was not proposing to abolish slavery as an institution but
rather promising to emancipate individual slaves behind Confederate
lines. It was clearly a wartime act. The sanction was not criminal
punishment for continuing to hold persons in bondage but rather that
“the executive government of the United States . . . will recognize and
maintain the freedom of such persons and will do no act or acts to
repress such persons . . . in any effort they may make for their actual
freedom.”101

The final Emancipation Proclamation, issued as promised on
January 1, 1863, explicitly articulated the constitutional justification.
He was declaring slaves behind Confederate lines free “by virtue of the
power in me vested as Commander in Chief of the Army and Navy . . .
in time of actual armed rebellion against the authority and Government
of the United States, and as a fit and necessary war measure for
suppressing” it. He reaffirmed the limited sanction “that the executive
government of the United States . . . will recognize and maintain the
freedom of said persons.” All along Lincoln had said that, no matter his
private feelings, he would deal with slavery only as it related to
preserving the Union. Hardly a word in the Proclamation’s notoriously
dry language suggested otherwise. But in the penultimate paragraph, he
could not forbear from affirming that he was doing “an act of justice”
and invoking “the considerate judgment of mankind and the gracious
favor of Almighty God.” But if it was an act of justice, he wrote in the
same sentence, it was nonetheless “sincerely believed to be . . .
warranted by the Constitution upon military necessity.”102

Had there been no war, his oath to preserve, protect, and defend the

100 Abraham Lincoln, Proclamation (Sept. 22, 1862), in 8 MESSAGES AND PAPERS, supra note
20, at 3297, 3298.

101 Id. at 3298.
102 Abraham Lincoln, Emancipation Proclamation (Jan. 1, 1863), in 8 MESSAGES AND
PAPERS, supra note 20, at 3358, 3358-60. Judge Frank J. Williams argues that Lincoln offered a
different legal justification for the Emancipation Proclamation than he had for the preliminary
version, arguing that the latter relied on congressional authority while the former relied on the
Lincoln’s authority as commander in chief. Williams, supra note 7, at 65-66. I find no such
distinction. See also ANASTAPLO, supra note 11, at 205-06, 216-18; see generally ALLEN C.
GUELZO, LINCOLN’S EMANCIPATION PROCLAMATION: THE END OF SLAVERY IN AMERICA
(2004) (demonstrating Lincoln’s profound concern that that emancipation be constitutionally
justifiable as a necessary measure of war). Deeply opposed to slavery, Lincoln worked to
“balance the integrity of ends (the elimination of slavery) with the integrity of means (his oath to
uphold the Constitution and his near-religious reverence for the rule of law).” Id. at 5.

2008] LINCOLN 947

Constitution would have obligated him to observe its strictures
regarding slavery, no matter his personal feelings, he explained in
another of his public letters. But it also “imposed upon me the duty of
preserving, by every indispensable means, that government—that
nation—of which that constitution was the organic law. . . . I felt that
measures, otherwise unconstitutional, might become lawful, by
becoming indispensable to the preservation of the constitution, through
the preservation of the nation.”103

B. Reconstruction

Lincoln dominated the Reconstruction process during the war. He
refused to sign the Wade-Davis Reconstruction bill, which detailed a
fixed and rigid procedure for reconstructing state governments and
restoring them to normal relations in the Union.104 By delaying the
reconstruction process until loyalty oaths were taken by a number
equaling fifty percent of those voting in the 1860 presidential election,
the Wade-Davis bill effectively eliminated Reconstruction as a tool for
breaking down southern resistance.

Lincoln preferred an ad hoc approach to establish loyal state
governments as quickly as possible. He intended them to serve as
rallying points for southerners willing to avow loyalty to the United
States. He appointed Andrew Johnson military governor of Tennessee
in 1861 and sent his name to the Senate for confirmation. Thereafter, he
appointed military commanders with civilian political experience to
govern occupied areas, without seeking Senate confirmation. He
hectored the commanders and their civilian appointees to persuade loyal
southerners to reorganize their governments and elect representatives to
Congress.105 He wanted southern states to send senators and

103 Letter of Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in 7 COLLECTED WORKS,
supra note 1, at 281.

104 By refusing to sign the measure, Lincoln exercised a “pocket veto” that killed it. See
Herman Belz, Reconstructing the Union: Theory and Policy During the Civil War 198-243
(1969); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and
Reconstruction, 1863-1869, at 70-83 (1974).

105 See Letter from Abraham Lincoln to Benjamin F. Butler, George F. Shepley and Others
(Oct. 14, 1862), in 5 COLLECTED WORKS, supra note 1, at 462; Letter from Abraham Lincoln to
Ulysses S. Grant, Andrew Johnson and Others (Oct. 21, 1862), in 5 COLLECTED WORKS, supra
note 1, at 470; Letter from Abraham Lincoln to Benjamin F. Butler (Nov. 6, 1862), in 5
COLLECTED WORKS, supra note 1, at 487; Letter from Abraham Lincoln to Frederick Steele,
John S. Phelps and Others (Nov. 18, 1862), in 5 COLLECTED WORKS, supra note 1, at 500; Letter
from Abraham Lincoln to George F. Shepley (Nov. 21, 1862), in 5 COLLECTED WORKS, supra
note 1, at 504; Letter from Abraham Lincoln to Stephen A. Hurlbut (July 31, 1863), in 6
COLLECTED WORKS, supra note 1, at 358; Letter to Nathaniel P. Banks (Aug. 5, 1863), in 6
COLLECTED WORKS, supra note 1, at 364; Letter from Abraham Lincoln to Andrew Johnson
(Sept. 11, 1863), in 6 COLLECTED WORKS, supra note 1, at 440. For Lincoln’s frustration with

948 CARDOZO LAW REVIEW [Vol. 29:3

representatives to Congress even if loyal state governments were not yet
organized. The election of loyal representatives from Tennessee “would
be worth more to us than a battle gained,” he urged Johnson. “How
long before we can get such a vote?”106 He urged Arkansas Senator-
elect William K. Sebastian, who had been expelled from the Senate at
the end of his prior term for adhering to the rebellion, to seek admission
as the representative of Arkansas loyalists. It would be up to the Senate
to accept or reject him, Lincoln acknowledged. “Still I should feel
great interest in the question,” which “may be so presented as to be one
of the very greatest national importance.”107 He was elated when the
House of Representatives seated two representatives from occupied
Louisiana in December 1863.108

Frustrated by southern unionists’ apparent inability to start the
process on their own, in December 1863 Lincoln issued a proclamation
outlining a process through which they could establish state
governments. He eschewed the detailed specifications that would lead
him to kill the Wade-Davis bill a few months later. He promised that
any government that emerged would “be recognized as the true
government of the State.”109 The only requirement was that it conform
to the Emancipation Proclamation. Lincoln based his Reconstruction
Proclamation on his constitutional power to pardon offenses. Nowhere
did he mention his powers as commander in chief.110

In the wake of Lincoln’s Reconstruction Proclamation, Louisiana,
Tennessee, and Arkansas finally held state constitutional conventions
and elected state officers, even as U.S. army commanders continued to
exercise military authority. (In Virginia, Lincoln recognized as
governor Francis H. Pierpoint, who had been selected by unionists to
maintain a loyal government after the state’s secession.).111 Lincoln did

the slow pace of efforts to restore loyal government in the South, see HARRIS, supra note 81, at
75-79, 97-120.

106 Letter from Abraham Lincoln to Andrew Johnson (July 3, 1862), in 5 COLLECTED WORKS,
supra note 1, at 302, 303. Lincoln wrote similarly to his military governor in occupied North
Carolina. Letter from Abraham Lincoln to Edward Stanly (Sept. 29, 1862), in 5 COLLECTED
WORKS, supra note 1, at 445.

107 Letter from Abraham Lincoln to Stephen A. Hurlbut, supra note 105, at 358-59. Hurlbut
and Sebastian would have understood this language to mean that Lincoln would use his influence
to secure Sebastian’s admission. Lincoln likewise urged the election of a loyal representative
from the occupied area of Virginia. Letter from Abraham Lincoln to John A. Dix (Oct. 26, 1862),
in 5 COLLECTED WORKS, supra note 1, at 476, 476-77.

108 HARRIS, supra note 81, at 78-83.
109 Abraham Lincoln, Proclamations (Dec. 8, 1863), in 8 MESSAGES AND PAPERS, supra note
20, at 3414, 3415.
110 Id. at 3414-16. The proclamation specified that those who took an oath of future loyalty
and personal acquiescence in the provisions of the president’s proclamations regarding slavery
could participate, and that the process could begin whenever that number equaled the number of
voters in the 1860 presidential election. The new government had to comport with the
aforementioned oath.
111 For wartime Reconstruction of Arkansas, Louisiana, Tennessee, and Virginia, see BELZ,

2008] LINCOLN 949

everything in his power to persuade Congress to admit senators and
representatives from these putative governments, barely failing to get
his way in the winter of 1865.112 Almost to the end, Lincoln saw
Reconstruction in terms of ending Confederate military opposition.
“[A]ll he wanted of us was to defeat the opposing armies and to get the
men composing the Confederate armies back to their homes . . . ,” he
told William Tecumseh Sherman as the war wound towards its end in
March 1865.113 Even the day before he died, he mused to the Cabinet
that he was perhaps going too fast on Reconstruction now that
Confederate forces had surrendered.114

IV. LINCOLN AS DESPOT: CONTEMPORARY CRITICS

All in all, Lincoln’s course towards Reconstruction was an
impressive exercise of inherent presidential power—a “breathtaking
assertion of presidential prerogative,” as James M. McPherson
described it.115 The same could be—and has been—said about each of
his actions. Political scientists have identified Lincoln as the
embodiment of the “prerogative presidency”—personifying the notion
that the chief executive has wide-ranging power to act in the national
interest and the public welfare.116

Many contemporaries were stunned by Lincoln’s assertion of
presidential prerogatives. Democrats immediately decried “executive
usurpation.”117 “Laws are made by proclamation without the
concurrence of Congress, and are executed without the action of the
judiciary,” exclaimed the governor of New Jersey, the eminent lawyer

supra note 104; THOMAS S. STAPLES, RECONSTRUCTION IN ARKANSAS, 1862-1874, at 9-43
(1923); PEYTON MCCRARY, ABRAHAM LINCOLN AND RECONSTRUCTION: THE LOUISIANA
EXPERIMENT (1978); PETER MASLOWSKI, TREASON MUST BE MADE ODIOUS: MILITARY
OCCUPATION AND WARTIME RECONSTRUCTION IN NASHVILLE, TENNESSEE, 1862-1865 (1978);
RICHARD LOWE, REPUBLICANS AND RECONSTRUCTION IN VIRGINIA, 1856-1870, at 10-24
(1991); CHARLES HENRY AMBLER, FRANCIS H. PIERPOINT: UNION WAR GOVERNOR OF
VIRGINIA AND FATHER OF WEST VIRGINIA 96-276 (1937).

112 BENEDICT, supra note 104, at 84-97; MCCRARY, supra note 111, at 271-304.
113 WILLIAM T. SHERMAN, 2 MEMOIRS OF GENERAL WILLIAM T. SHERMAN 326 (1875).
114 Journal Entry of Salmon P. Chase (Apr. 15, 1865), in 1 THE SALMON P. CHASE PAPERS
530 (John Niven ed., 1993).
115 MCPHERSON, supra note 17, at 209.
116 Abraham Lincoln, Letter to A.G. Hodges (April 4, 1864) reprinted in JAMES P. PFIFFNER
& ROGER H. DAVIDSON, UNDERSTANDING THE PRESIDENCY 35-37 (2d ed. 2000). KOENIG,
supra note 7, at 11, cites Lincoln in a discussion of “Presidential Power as Prerogative.” Richard
Pious presents “Lincoln’s Constitutional Dictatorship” as the introductory case to his chapter The
Presidential Prerogative, in THE PRESIDENCY, supra note 7, at 81-83.
117 Rep. Clement L. Vallandigham, Speech in the House of Representatives: Executive
Usurpation (July 10, 1861), available at
http://www.angelfire.com/pa/sergeman/defenders/civilwar/execusurp.html.

950 CARDOZO LAW REVIEW [Vol. 29:3

Joel Parker.118 Calling out volunteers to serve in an enlarged army
without congressional authorization, initiating a blockade of southern
ports on his own authority, arresting citizens and holding them in
defiance of writs of habeas corpus, suppressing critical newspapers and
holding citizens for voicing opinions, emancipating slaves on a claim of
military necessity, encouraging citizens of southern states to replace
their governments—all smacked of despotism, opponents charged. “A
modern invention termed the ‘war power,’ is made to override the
explicit mandates of the organic law,” Parker lamented. “Free press,
free speech, trial by jury, and habeas corpus, the corner-stones of our
system of government, have been undermined and swept away.”119
Former Supreme Court justice Benjamin R. Curtis observed grimly:

It must be obvious to the meanest capacity, that if the President of
the United States has an implied constitutional right, as commander-
in-chief of the army and navy in time of war, to disregard any one
positive prohibition of the Constitution, or to exercise any one power
not delegated to the United States by the Constitution, because, in his
judgment, he may thereby ‘best subdue the enemy,’ he has the same
right, for the same reason to disregard each and every provision of
the Constitution . . . . The necessary result of this interpretation of the
Constitution is, that, in time of war, . . . every private and personal
right of individual security against mere executive control, and every
right reserved to the States or the people, rests merely upon
executive discretion.120

The administration’s arbitrary measures, lawyer George Ticknor Curtis
warned, were “sure indications of that weakness which always precedes
a relapse into despotism.”121 They were promulgated, wrote an Indiana
Democratic pamphleteer, by “men who hate slavery, more than they
love the Constitution, and prefer that slavery and the Constitution shall
die together rather than that both shall live.”122

In the circuit court case of Ex parte Merryman, Chief Justice Roger
Taney denied that the president’s obligation to enforce the laws implied
any authority to act on his own. His obligation to enforce the laws
imposed only “a duty to come in aid of the judicial authority” if it were
resisted. “[I]n exercising this power,” Taney held, the president “acts in
subordination to judicial authority, assisting it to execute its process and

118 Campaign Document, No. 6, Speech of Governor Parker, at Freehold, N.J.: Our National
Troubles—Their Causes and the Remedy (Aug. 20, 1864), in HANDBOOK OF THE DEMOCRACY
FOR 1863 & ’64, at 2 [hereinafter HANDBOOK OF THE DEMOCRACY].

119 Id. at 2.
120 BENJAMIN R. CURTIS, EXECUTIVE POWER (1862), reprinted in 1 UNION PAMPHLETS OF
THE CIVIL WAR, 1861-1865, at 461, 463 (Frank Freidel ed., Harvard University Press 1967).
121 Campaign Document No. 7, Hon. George Ticknor Curtis, On Constitutional Liberty
(1864), in HANDBOOK OF THE DEMOCRACY, supra note 118, at 6.
122 FACTS FOR THE PEOPLE! RELATING TO THE PRESENT CRISIS, BY A CITIZEN OF INDIANA
(1862), reprinted in 1 UNION PAMPHLETS OF THE CIVIL WAR, supra note 120, at 404, 424.

2008] LINCOLN 951

enforce its judgments.”123 Four justices, including Taney, dissented
from the Court’s decision upholding Lincoln’s blockade in The Prize
Cases. The insurrection Lincoln faced in 1861 did not create a state of
war that would justify blockades and the seizure of property under
them, the dissenters insisted. The Constitution delegated the power to
declare such a state of war only to Congress. Until Congress had
affirmed the existence of a war in August, 1861, Lincoln could not
order a blockade, and no seizures before that time were legal. He was
limited to suppressing the rebellion with the tools Congress had
provided—the Militia Acts of 1792, 1795, and 1807. These, the
dissenters insisted, “furnishe[d] the most ample means of repelling
attacks from abroad or suppressing disturbances at home until the
assembling of Congress.” Congress could then “bring into operation the
war power, and thus change the nature and character of the contest.”
Only then would it be carried on “under the law of nations, and the Acts
of Congress as war measures, with all the rights of war,” including the
right to impose a blockade.124

If the right to challenge one’s detention was to be suspended,
Samuel J. Tilden urged, “it was absolutely necessary, as well for the
safety of the citizen as for the convenience and fair action of the
government, that the whole thing should have been defined by
legislative action.”125 It was a “heresy” to argue that things could be
done under the “war power” that could not be done in time of peace, “as
if we had one Constitution for a state of peace and another Constitution
for a state of war,” George Ticknor Curtis sputtered.126 Lincoln’s claim
to a broad “war power” to save the life of the nation meant that “the
President . . . has but to involve the people in a war, with any body,
ostensibly to maintain the Constitution, and he can then pervert that
war, to subvert that Constitution,” House Democratic leader James
Brook declaimed. “This War Power is a new name for a very old thing.
It is the new name of Despotism . . . .”127

123 Ex parte Merryman, 17 F. Cas. 144 at 149 (C.C.D. Md. 1861) (No. 9,487).
124 The Prize Cases, 67 U.S. (2 Black) 635, 692 (1863) (Nelson, J., dissenting).
125 Samuel Tilden, Address to the Society for the Diffusion of Political Knowledge (Feb. 13,
1863), in 1 PAPERS FROM THE SOCIETY FOR THE DIFFUSION OF POLITICAL KNOWLEDGE, THE
CONSTITUTION: ADDRESSES OF PROF. MORSE, MR. GEO. TICKNOR CURTIS, & MR. S.J. TILDEN,
AT THE ORGANIZATION 7 (1863) [hereinafter PAPERS FROM THE SOCIETY].
126 George Ticknor Curtis, Address to the Society for the Diffusion of Political Knowledge
(Feb. 13, 1863), in 1 PAPERS FROM THE SOCIETY, supra note 125, at 8.
127 JAMES BROOKS, THE HON. JAMES BROOKS’ SPEECH, BEFORE THE UNION DEMOCRATIC
ASSOCIATION, 932 BROADWAY, TUESDAY EVENING, DECEMBER 30, 1862, at 9 (N.Y. Evening
Express 1863). The speech was also published as JAMES BROOKS, SPEECH OF THE HON. JAMES
BROOKS, AT 932 BROADWAY, TUESDAY EVENING, DECEMBER 30, 1862, in 3 PAPERS FROM THE
SOCIETY, supra note 125, at 11.

952 CARDOZO LAW REVIEW [Vol. 29:3

V. LINCOLN AND “CONSTITUTIONAL DICTATORSHIP”: LESSONS FOR
TODAY

Historians and political scientists have almost unanimously
rejected the idea that Lincoln was a “despot.” He exercised, rather, a
“constitutional dictatorship,” claiming emergency power to act outside
the Constitution, softened by his personal magnanimity and restraint
and his commitment to democracy.128 There was, James G. Randall
observed in his classic essay Lincoln in the Role of Dictator, a “real
uncongeniality” between Lincoln’s aggressive exercise of power “and
the type of man he was.”129 But Randall also understood that “to say
that Lincoln regretted” having to take extra-constitutional measures
“and that he was solicitous to preserve constitutional restraints, is not to
refute the fact” that he had assumed dictatorial powers.130

But most historians and recent legal analysts consider the
“constitutional dictatorship” metaphor inapt. As Phillip Shaw Paludan
has observed, “[W]hat strikes modern historians is how respectful
Lincoln was of constitutional limitations . . . .”131 First, Lincoln limited
his claims strictly to conditions precipitated by the war, involving his
duty to preserve the Constitution and enforce the laws in the face of
opposition. As for the ordinary, peace-time business of the nation, he
adhered to his Whig views of the presidential role. “According to my
political education, I am inclined to believe that the people in the
various sections of the country should have their own views carried out
through their representatives in Congress . . . .” he told a Pittsburg
audience as he touched on the controversial issue of protective tariffs.132
In the draft he had prepared for his talk, he had gone into more detail:
The Constitution authorized the president to recommend measures to
Congress and to veto those he thought improper. He knew there were
also “certain indirect influences” by which he could affect congressional
action. “My political education strongly inclines me against a very free

128 See the sources cited in note 7, supra.
129 Randall, supra note 7, at 237.
130 Id. at 248.
131 Phillip Shaw Paludan, “Dictator Lincoln”: Surveying Lincoln and the Constitution, 21
MAG. HIST. 8, 10 (2007). See HERMAN J. BELZ, Lincoln and the Constitution: The Dictatorship
Question Reconsidered, in ABRAHAM LINCOLN, CONSTITUTIONALISM, AND EQUAL RIGHTS IN
THE CIVIL WAR ERA 17 (1998); HERMAN J. BELZ, ABRAHAM LINCOLN AND AMERICAN
CONSTITUTIONALISM, reprinted in ABRAHAM LINCOLN, CONSTITUTIONALISM, AND EQUAL
RIGHTS IN THE CIVIL WAR ERA, supra at 72; Michael Les Benedict, The Constitution of the
Lincoln Presidency and the Republican Era, in THE CONSTITUTION AND THE AMERICAN
PRESIDENCY 45 (Martin L. Fausold & Alan Shank eds. 1991); FARBER, supra note 11; DON E.
FEHRENBACHER, The Paradoxes of Freedom, in LINCOLN IN TEXT AND CONTEXT: COLLECTED
ESSAYS 129 (1987); WILLIAMS, supra note 11, passim.
132 ABRAHAM LINCOLN, SPEECH AT PITTSBURGH, PENNSYLVANIA (Feb. 15, 1861), reprinted
in 4 COLLECTED WORKS, supra note 1, at 210, 213.

2008] LINCOLN 953

use of any of these means, by the Executive, to control the legislation of
the country,” he had written. “As a rule, I think it better that congress
should originate, as well as perfect its measures, without external
bias.”133

His actions reflected his beliefs. Even where his edict as
commander in chief clearly ran, he made his willingness to defer to
Congress clear. After U.S. forces occupied New Orleans and
suppressed Confederate courts in 1861, business people pressed him to
provide military courts to enable them to collect debts and enforce
contracts. “I have thus far declined to do it, . . . because I have been
unwilling to go beyond the pressure of necessity in the unusual exercise
of power. But the powers of Congress, I suppose, are equal to the
anomalous occasion,” he told the House and Senate. He urged them to
come up with a plan to administer justice temporarily in all territories to
be occupied by federal forces.134 Only after ten months of
congressional inaction, did he finally create the courts by an executive
order.135

While Lincoln was completely immersed in the war, meeting
regularly with Secretary of War Stanton at the War Department, one
could barely find an administration policy in other areas.136 Treasury
Secretary Salmon P. Chase regularly complained about Lincoln’s failure
to consult with the Cabinet on such matters.137 With the war’s end, his
war powers would terminate, and he would act within the limited
framework of his Whig conception of the presidency. If Confederates
simply laid down their arms, they could have peace. “If questions
should remain, we would adjust them by the peaceful means of
legislation, conference, courts, and votes,” he urged. “The Executive
power itself would be greatly diminished by the cessation of actual
war.”138

Second, Lincoln never lost the striking commitment to the rule of
law that he had articulated as a young man at the Springfield Young
Man’s Lyceum. He was, as Judge Williams has pointed out, as much

133 Id. at 214.
134 Lincoln, supra note 80, at 3251.
135 Abraham Lincoln, Executive Order Establishing a Provisional Court in Louisiana (Oct. 20,
1862), in 8 MESSAGES AND PAPERS, supra note 20, at 3323, 3323-24.
136 DAVID H. DONALD, Abraham Lincoln: Whig in the White House, in LINCOLN
RECONSIDERED: ESSAYS ON THE CIVIL WAR ERA 187 (1956).
137 See, e.g., Letter from Salmon P. Chase to Charles P. McIlvaine (Jan. 25, 1863), in 3 THE
SALMON P. CHASE PAPERS, supra note 114, at 372, 372-73; Letter from Salmon P. Chase to
James Watson Webb (Nov. 7, 1863), in 4 THE SALMON P. CHASE PAPERS, supra note 114, at
179, 179-80. Other members of the Cabinet echoed Chase’s complaint. See DORIS KEARNS
GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 525-27 (2005).
138 Abraham Lincoln, Fourth Annual Message to Congress (Dec. 6, 1864), in 8 MESSAGES
AND PAPERS, supra note 20, at 3444, 3455.

954 CARDOZO LAW REVIEW [Vol. 29:3

“attorney-in-chief” as commander in chief.139 He consistently tied his
actions to legal and constitutional principles. And he adhered to them
scrupulously. He had not issued his Preliminary Emancipation
Proclamation until convinced it was a military necessity, and he had
tailored the final proclamation closely to its constitutional justification.
Chase and other radical Republicans urged Lincoln to extend the
Proclamation’s operation to rebel territory that federal forces already
occupied as of January 1, 1863. Lincoln would not do it. “The original
proclamation has no constitutional or legal justification, except as a
military measure.”140 If he took the step the radicals advocated, “must I
not do so, without the argument of military necessity, and so, without
any argument, except the one that I think the measure politically
expedient, and morally right? Would I not thus give up all footing upon
constitution or law? Would I not thus be in the boundless field of
absolutism?”141 When General Benjamin F. Butler ordered residents of
Norfolk, in occupied Virginia, to vote on instituting a program of
municipal improvements, Lincoln reproved him. If he needed to take
action to prevent disease or safeguard his forces, he could undertake a
wide range of municipal improvements. “But you should do so on your
own avowed judgment of a military necessity, and not seem to admit
that there is no such necessity, by taking a vote of the people on the
question. Nothing justifies the suspending of the civil by the military
authority, but military necessity . . . .”142

Analysts suggesting that Lincoln believed he could act outside
legal and constitutional limitations cite a few instances in which he
seemed to make such a claim. But read in light of his constantly
reiterated arguments that he was acting within the law and exercising
constitutionally delegated authority, his words can be understood
differently. His clearest articulation of an emergency power to act
outside the law was his query in response to criticism of his suspension
of the privilege of the writ of habeas corpus—“Are all the laws but one
to go unexecuted . . . lest that one be violated?”143 But he immediately
followed the query with an assurance that “it was not believed that this
question was presented. It was not believed that any law was
violated.”144 Lincoln was a lawyer. Lincoln the lawyer often threw out

139 FRANK J. WILLIAMS, Abraham Lincoln: Commander in Chief or “Attorney in Chief”?, in
LINCOLN AND HIS COUNTERPARTS (Charles Hubbard ed., 1999), reprinted in JUDGING LINCOLN,
supra note 11, at 34.

140 Letter from Abraham Lincoln to Salmon P. Chase (Sept. 2, 1863), in 6 COLLECTED
WORKS, supra note 1, at 428, 428-29.

141 Id. at 428-29.
142 Letter from Abraham Lincoln to Benjamin F. Butler (Aug. 9, 1864), in 7 COLLECTED
WORKS, supra note 1, at 487, 487-88.
143 Lincoln, supra note 24, at 3226.
144 Id.

2008] LINCOLN 955

an extreme argument, which he took pains not to elaborate, in order to
make his real argument more palatable. His rhetorical question was an
example of the technique. A bit later, Lincoln acknowledged that he
had taken some actions “without any authority of law,”145 but what he
clearly meant, given the context, was that he had acted without statutory
authority. He articulated the proposition that “measures, otherwise
unconstitutional, might become lawful, by becoming indispensable to
the preservation of the constitution.”146 That, by its own terms, is an
argument for the legality of the measures, not an argument that their
legality was irrelevant.

Third, Lincoln never came close to claiming the untrammeled
authority inherent in the term “dictator.” In his classic argument that
Lincoln had set an example of “constitutional dictatorship,” Clinton
Rossiter adopted the Webster Dictionary definition of dictator as a
person “exercising . . . absolute authority in government.”147 “Absolute
authority,” of course, means authority over which there is no control.
Lincoln never claimed or exercised any such authority. Lincoln argued
that the obligation to preserve the Constitution, enforce the laws, and act
as commander in chief of the armed forces implied a range of
presidential powers. He never claimed that the delegation of these
powers operated to limit the powers the Constitution had delegated to
Congress. As Lincoln’s resident expert on the war powers, Solicitor of
the War Department William Whiting, made clear, “[T]he power of
Congress to pass laws on the subjects expressly placed in its charge by
the terms of the constitution cannot be taken away from it, by reason of
the fact that the President . . . also has powers, equally constitutional, to
act upon the same subject-matters.”148 His request that the special
session of Congress assembling July 4, 1861 ratify his actions of the
prior months was an acknowledgment of its ultimate authority over the
steps he had taken.149 He left “entirely to the better judgment of
Congress” whether to enact legislation governing the suspension of the
writ of habeas corpus.150 When Congress did so in 1863, Lincoln
followed the terms of the act. His administration cooperated with the
aggressive Joint Congressional Committee on the Conduct of the War,
which questioned strategy, tactics, and the assignments of military
commanders. The committee trenched closely upon authority the
president could have claimed was his alone. “[T]his improvised vigilant
committee . . . is a marplot, and its greatest purpose seems to be to

145 Lincoln, supra note 27, at 3280.
146 Letter from Abraham Lincoln to Albert G. Hodges, supra note 103, at 281.
147 ROSSITER, supra note 7, at 4.
148 WILLIAM WHITING, WAR POWERS UNDER THE CONSTITUTION OF THE UNITED STATES 27
(Boston, Little, Brown & Co. 1864).
149 See supra text accompanying note 24.
150 Lincoln, supra note 24, at 3226.

956 CARDOZO LAW REVIEW [Vol. 29:3

hamper my action and obstruct the military operations,” Lincoln
complained.151 Yet not once did Lincoln claim an executive privilege to
withhold information from it.152

Lincoln claimed only a concurrent power with Congress to
emancipate the slaves in order to suppress the rebellion. He had signed
a Confiscation Act that seized and freed the slaves of rebels, and he had
specifically relied upon it to bolster his own authority in the Preliminary
Emancipation Proclamation.153 What he did deny, both to himself and
to Congress, was the power to abolish slavery as an institution. Whiting
explained the “distinction between emancipating or confiscating slaves,
and abolishing the laws which sustain slavery” thusly: The confiscation
or appropriation to a public use of all the horses now in Massachusetts
“would change the legal title to these horses,” but “it would not alter the
laws of Massachusetts as to personal property; nor would it deprive our
citizens of the legal right to purchase and use other horses.”154 Short of
a constitutional amendment, the federal government simply had no
constitutional authority to do more. When Congress included
provisions that abolished slavery itself in the Wade-Davis bill, Lincoln
expressly stated that one reason for his refusal to sign was that he was
unwilling to acknowledge its right to do so.155

Lincoln and the Republican majority in Congress differed most
radically over the issue of Reconstruction. Yet Lincoln never denied

151 WARD HILL LAMON, RECOLLECTIONS OF ABRAHAM LINCOLN, 1847-1865, at 183
(Dorothy Lamon Teillard ed., 1911).

152 Hans L. Trefousse, The Joint Committee on the Conduct of the War: A Reassessment, 10
CIVIL WAR HIST. 5 (1964); BRUCE TAP, OVER LINCOLN’S SHOULDER: THE COMMITTEE ON THE
CONDUCT OF THE WAR (1998); Herman Wolkinson, Demands of Congressional Committees for
Executive Papers, 10 FED. BAR J. 103 (1949). Wolkinson reported that Lincoln refused a Senate
request for copies of messages from Fort Sumter in March 1861. Id. at 148. However, the Senate
requested the papers only if compatible with the national interest, and Lincoln replied that he did
not feel it would be so at that time. Abraham Lincoln, Special Message to the Senate (Mar. 26,
1861), in 7 MESSAGES AND PAPERS, supra note 20, at 3213, 3213-14. Lincoln gave a similar
reply to a similar request from the House for papers related to the arrest of the police
commissioners of Baltimore, Maryland in April 1861. Abraham Lincoln, Special Message to the
House of Representatives (July 27, 1861), in 8 MESSAGES AND PAPERS, supra note 20, at 3234.

153 See supra text accompanying notes 92, 95, and 96.
154 WHITING, supra note 148, at ii.
155 Lincoln, supra note 97, at 3424. In his diary, Lincoln’s secretary John Hay recorded
Lincoln as telling congressmen that although he could emancipate the slaves by proclamation,
Congress could not do the same. “I may in an emergency do things on military grounds which
cannot be done constitutionally by Congress,” Hay quoted Lincoln as saying. LINCOLN AND THE
CIVIL WAR IN THE DIARIES AND LETTERS OF JOHN HAY 204 (Tyler Dennett, ed., 1939); 9
NICOLAY & HAY, supra note 27, at 120. Analysts have cited this statement as an indication of
the “breathtaking assertion of presidential prerogative” that characterized Lincoln’s
administration. MCPHERSON, supra note 17, at 209. But Hay almost certainly misquoted what
Lincoln said. He was not exercising an “emergency power” but a “war power.” And, as noted,
he had recognized Congress’s right to do the same on several occasions. What Lincoln had oft-
stated was that slaves could be emancipated under the “military power” but that slavery could not
be abolished except by constitutional amendment.

2008] LINCOLN 957

Congress’s final authority. He exercised his undoubted right to refuse
to sign the Wade-Davis Reconstruction bill, killing it with a “pocket
veto.” He did not suggest that he considered the measure beyond
congressional authority in his proclamation explaining the reasons why
he withheld his signature. Instead, he explained that he did not wish to
commit the nation to any particular plan, and especially that he did not
want to set aside the free state constitutions and governments already
established under his auspices in Arkansas and Louisiana.156

Lincoln’s restraint is manifest when one compares his course on
Reconstruction with that of his successor, the pugnacious Andrew
Johnson. Unlike Lincoln, Johnson claimed the sole power as
commander in chief to set terms for Reconstruction and to decide when
peace had been restored. He used his authority over the army to subvert
congressional reconstruction legislation. He and his Cabinet ignored
laws requiring test oaths of government appointees and refused to
enforce the Confiscation Acts. He assailed Congress bitterly, equating
its leaders with the leaders of the secession movement. His course
threatened to bring Reconstruction to a standstill and raised ominous
possibilities of a crisis in the upcoming presidential and congressional
elections of 1868. The looming crisis abated only with his
impeachment.157

In contrast, Lincoln only once declared that he would refuse to
carry out an act of Congress. He would not retract or modify the
Emancipation Proclamation nor return to slavery anyone free by its
terms. “If the people should, by whatever mode or means, make it an
Executive duty to reenslave such persons, another, and not I, must be
their instrument to perform it.”158 Even here, Lincoln’s declaration
reads more like a promise to resign than to defy Congress or the people.

Finally, there was Lincoln’s famous commitment to democracy. It
is a staple of the literature that any of Lincoln’s excesses were mitigated
by this democratic commitment. “The theme of government by the
people,” Don E. Fehrenbacher has written, runs “like a golden thread
across the entire fabric of Lincoln’s constitutional thought.”159 But
Lincoln’s commitment to democracy meant more than just conceding
the right of the people to choose new leaders. In the world of the 1860s,
Americans had not yet delegated to the Supreme Court of the United
States the primary responsibility for enforcing their Constitution. As a

156 Lincoln, supra note 97, at 3423-24.
157 For detailed accounts, see MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF
ANDREW JOHNSON (1973) and HANS L. TREFOUSSE, IMPEACHMENT OF A PRESIDENT: ANDREW
JOHNSON, THE BLACKS, AND RECONSTRUCTION (1975).
158 Lincoln, supra note 138, at 3456.
159 DON E. FEHRENBACHER, Lincoln and the Constitution, in LINCOLN IN TEXT AND
CONTEXT, supra note 131, at 126. See also, e.g., BELZ, supra note 131, at 33-34; Randall, supra
note 7, at 251-52.