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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Lincoln: A President for War and Peace
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Monday, February 12, 2007
Lincoln: A President for War and Peace
Scott Horton
"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, — 'I see no probability of the British invading us;' but he will say to you, 'Be silent: I see it, if you don't.'
Comments:
A big reason Lincoln is so lionized is that he never had to deal with the fallout of his Civil War policies in the aftermath of the war. His assasination at his high point on the cusp of victory explains much of the Lincoln worship.
Horton's point that Lincoln's policies were born of necessity and that Lincoln never sought to craft an imperial Presidency, etc. is only possible because of the assassination. But, Lincoln never had to deal with the aftermath of the policies. Lincoln never had a chance to become "imperial", since Horton has already defined what Lincoln did during his life as necessary. Mighty convenient formulation.
A big reason Lincoln is so lionized is that he never had to deal with the fallout of his Civil War policies in the aftermath of the war. His assasination at his high point on the cusp of victory explains much of the Lincoln worship.
I'm not sure what "fallout" you mean, nor to which policies you refer. But I think much of the worship of Lincoln stems from his soaring rhetoric in speeches like Gettysburg and the Second Inaugural -- speeches that I personally can't read without tears -- and our understanding that he undertook an extraordinary task and saw it through to a new birth of freedom. Lincoln never had a chance to become "imperial", since Horton has already defined what Lincoln did during his life as necessary. Less a definition and more a description, in my view. That's not to say that every act Lincoln took was "necessary", but that in general the dire situation required measures which can't be justified in lesser emergencies. That hardly seems controversial.
The claim of necessity certainly seems stronger when one is dealing with actual conditions rather than potential ones.
Mr. Horton doesn't seem to be talking about the historical figure I have studied, the one who counselled that Supreme Court opinions bind only the actual litigants, who suspended habeas corpus, who ignored orders from Supreme Court justices, who confiscated rebel property, whose secretary of state secretly gave money to the governor of Indiana when the legislature attempted to bring the troops home by cutting funding, etc. etc. As for Barack Obama, if there is anything more tiring than politicians comparing themselves to Lincoln, I don't know what it is offhand. Maybe politicians going to church, but it's a close call.
In the last six years, the noble legacy of America's greatest president has been used shamefully by the advocates of the new politics of American Empire.
Starting off with a slander is not usually the best means of making a meaningful historical comparison. What "American Empire?" It does not appear that the elected Iraqi government, which does not appear to do much of anything we want, realizes that they are part of Mr. Bush's imperium. These folks have no real affection for Lincoln. Following the Straussian program, they seek to recraft American history and the legacy of American leaders to fit their own agenda. Hence, they have crafted a vision of a dark new Lincoln, a man intoxicated by the power of his office, who swept aside civil liberties and took great liberties with the Constitution in the exercise of his war powers. Huh? Perhaps Mr. Horton would grace us with a quote from those who note that Lincoln took far greater liberties with the Constitution than Mr. Bush ever imagined which crafted a vision of a dark new Lincoln, a man intoxicated by the power of his office, who swept aside civil liberties and took great liberties with the Constitution in the exercise of his war powers. In truth there are many unsettling things that were done with a sense of urgent necessity in the course of the Civil War; things which seem difficult to reconcile with the vision of the man from Springfield. The latter vision is a myth. Lincoln was a tough political infighter who did what needed to be done, the Constitution be damned, to fulfill his objective of preserving the Union. But it's plain first that the necessity claimed was legitimate and second that Lincoln was not happy in doing these things, that he did not seek to craft some new imperial order. You might want to ask the South what they thought about the "War of Northern Aggression." Mr. Lincoln's goal was to subjugate the South to the government of the Union, which was controlled by the far more populous North. In stark contrast, Mr. Bush's goal and achievement was establishing independent sovereign governments in Afghanistan and Iraq. Moreover, the hallmark of Lincoln's contribution to this war effort was a vision of humanity and justice, a repudiation of cruelty, and a denunciation of the use of military necessity as a doctrinal justification for excesses (all of which repose in his General Order No. 100 of April 23, 1863, the seminal document of international humanitarian law). Have you read this document? I would refer you to the following passages of how Mr. Lincoln ordered the treatment of what we now call unlawful enemy combatants: Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. Art. 83. Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. Art. 84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. In sum, Lincoln ordered captured unlawful enemy combatants to be summarily executed by Union troops. These orders are what you termed as "a vision of humanity and justice, a repudiation of cruelty, and a denunciation of the use of military necessity as a doctrinal justification for excesses..." In that case, you must surely place Mr. Bush's far more generous treatment of unlawful enemy combatants at Gitmo up there with the works of Mother Theresa and Ghandi. Time to get real. War is not a game and the Constitution is not a suicide pact. Perhaps it would do to remember the words of General William Tecumseh Sherman to the politicians of Atlanta: "War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out." In the application of this truism, Mr. Lincoln was far more ruthless than Mr. Bush.
Go on, Scott, explain article 82. The plain fact is, if you had been alive then, you would have been a copperhead apologist filled with rage against King Lincoln, Abraham Africanus, the Widow-Maker, whatever your friends of that era called him. You know it, I know it, everyone knows it.
Explain article 82.
"Bart" DePalma is about as knowledgeable about libel law as he is about CivPro and ConLaw, which is to say "not at all":
[Horton, from the post]: In the last six years, the noble legacy of America's greatest president has been used shamefully by the advocates of the new politics of American Empire. Starting off with a slander is not usually the best means of making a meaningful historical comparison. Where's the "slander", counsellor? Betcha you can find a lot that look a whole lot more like slander in the appropriately self-named screed/tome by Ann Coulter. She's one of yours.... Cheers,
"Bart" DePalma says:
I would refer you to the following passages of how Mr. Lincoln ordered the treatment of what we now call unlawful enemy combatants: Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates. May I point out that highway robbers (as any other alleged criminals) are entitled to a trial? Cheers,
"the Constitution is not a suicide pact."
That phrase is one of my pet peeves. Inevitiably, it's intoned by somebody who thinks the Constitution IS a "suicide pact", and as such we're entitled to violate it. Me, I think it's not a suicide pact, in the sense that following it strictly isn't suicidal. Arne, may I point out the operative phrase is not, "shall be "tried" as highway robbers or pirates.", but rather "treated summarily" as such? Guilt assumed, get on with the punishment.
Lincoln's conduct of the Civil War has been mined many times by those looking for signs of his character and his likely handling of current affairs, both by those who admire him and by those who revile him. May I respectfully suggest that an alternative, less overworked area, to look for such signs would be his handling of the prisoners captured in the Dakota Conflict in 1862.
Brett:
Arne, may I point out the operative phrase is not, "shall be "tried" as highway robbers or pirates.", but rather "treated summarily" as such? Guilt assumed, get on with the punishment. While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law. Cheers,
arne:
The Constitution extends a right to trial to criminal defendants, not to wartime combatants. During wartime, you can legally kill enemy combatants at will. Through nearly all of our history, the United States extended the benefit safe capture to surrendering enemy combatants who followed the laws of war, but not to unlawful enemy combatants, who were usually summarily executed. Mr. Lincoln's orders did not break any new ground in this regard. For the first time in our history, the military in Vietnam extended POW benefits to VC unlawful enemy combatants in the vain hope that the enemy would recognize our legal combatants as such and extend them POW rights. The Constitution did not compel this change, it was a military decision.
"While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law."
Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law?
I think it's not a suicide pact, in the sense that following it strictly isn't suicidal.
Agreed. Well said. Arne, may I point out the operative phrase is not, "shall be "tried" as highway robbers or pirates.", but rather "treated summarily" as such? Guilt assumed, get on with the punishment. It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied. Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law? I think Lincoln demonstrated that he cared a great deal about Constitutional law. He made repeated public legal arguments justifying his actions. Now, you may not agree with all of his arguments (I don't), but they were serious arguments.
Mark Field said...
It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied. "Summary" proceedings under military justice do not involve trials. For example, a summary courts martial is simply a hearing in front of the commanding officer. At most, the unlawful enemy combatants which fell under Article 82 would have a summary battlefield hearing before the capturing unit's commanding officer to determine if the capture fell under this definition. If the CO found that the capture did fall under Article 82, the result would be a summary hanging or shooting.
Art. 82 - 84 of the Lieber code seem to me to be elaborations of the old Section 2 of the Articles of War approved in 1806, so claiming it was all Lincoln's idea seems a bit silly.
If one is looking for Lincoln's influence in the Lieber Code, it would be better to look at those orders that differ wildly from the preceding code.
"I think Lincoln demonstrated that he cared a great deal about Constitutional law."
Just not enough to be bound by it? I'm thinking of the occasion when Taney pointed out to him that the Constution gave Congress, not the President, the power to suspend the great writ, and Lincoln's reasoned legal argument was an order for the Chief Justice to be arrested.
Just not enough to be bound by it? I'm thinking of the occasion when Taney pointed out to him that the Constution gave Congress, not the President, the power to suspend the great writ
While I do agree that Congress has the power to suspend the writ, there are four things worth considering: 1. The issue was not settled law at the time. 2. Lincoln had a colorable argument -- which he made -- that the Executive could act in an emergency situation, which this was. 3. Lincoln subsequently sought approval from Congress for the suspension, which Congress did. 4. Taney was hardly an innocent, or even loyal actor in this case.
1. It is a conceit of lawyers that if it isn't "settled law" that the sun rises in the East, you have no basis for complaining about somebody claiming it rises in the West.
2. Your "colorable argument" boils down to nothing more than, "We don't have to actually follow the Constitution in emergencies." 3. Which did not retroactively make his action constitutional, and certainly didn't render his order to arrest Taney reasonable. 4. Agreed. He merely had the law on his side, and blatently so.
"Bart" DePalma trots out the rotten "we can legally summarily execute 'illegal enemy combatants' in wartime if we feel like it, so they ought to kwittheirbitchin and be happy'" tripe once again:
The Constitution extends a right to trial to criminal defendants, not to wartime combatants. And if they're accused of being criminals, they are entitled to that, be they "wartime combatants or not" (absent legal Congressional suspension of habeas corpus). In any case, they are protected against punishment without trial. During wartime, you can legally kill enemy combatants at will.... Not quite true. Not if they're in your custody and/or are otherwise rendered hors de combat. Just try it, "Bart", and you may find that you're in a heap'o'legal'trouble. ... Through nearly all of our history, the United States extended the benefit safe capture to surrendering enemy combatants who followed the laws of war, but not to unlawful enemy combatants, who were usually summarily executed. This is hogwash. You, in a post a while back, made this claim and gave a reference. I replied to that claim and rebutted it here, here, and lastly and most resoundingly, here. Yet, here you are, a couple months down the road -- never having addressed the objections of your erstwhile fellow conversationalists (and others besides me were on your case on that thread) -- trotting the "same ol' same ol'" out again. Proof by repetitive assertion is not very convincing. Particularly when people outright dispute your facts. Mr. Lincoln's orders did not break any new ground in this regard. "... shall be treated summarily as highway robbers or pirates." Hmmmm. Missed the words "and executed" there. Were they hiding under those "M"s? For the first time in our history, the military in Vietnam extended POW benefits to VC unlawful enemy combatants in the vain hope that the enemy would recognize our legal combatants as such and extend them POW rights. The Constitution did not compel this change, it was a military decision. Extending POW rights to them is not the same as not carrying out summary sentences, just FWIW. Must be hard work moving the goalposts all over creation. I think your facts are wrong. As I pointed out in the previous thread on this subject, your very own cite on summary execution history shows that essentially all but one of the incidents listed of such summary executions were done by the Nazis or Imperial Japan. Hardly a model for our legal standards, I'd say ... much as you might wish for it. Cheers,
Brett:
[Arne]: While I won't go on at great length about Lincoln's strict adherence to Constitutional provisions (for obvious reasons), may I point out that "'treated summarily' as such? Guilt assumed, get on with the punishment" is not exactly in line with established Constitutional law." Is anybody with even a passing aquaintance with Civil war history under the illusion that Lincoln gave a bucket of warm spit about Constitutional law? Sorry, I must be tired. Did you have a point here, Brett? Other than to bring up again what I indicated was immaterial to my point (that is to say, Lincoln's opinion on the Constitutionality of various things)? As I indicated, regardless of Lincoln's opinions, "guilt assumed" is antithetical to Western jurisprudence and to the roots of the Constitution. And if I may add, it's ilegal as well. Cheers,
"Bart" DePalma, non-responsive as usual:
[Mark Field]: It seems to me the Article could be read either way. Normally, POWs are not tried as criminals. Article 82 may have meant simply that such persons could be so tried. OTOH, it could mean, as you suggest, summary execution. I wonder if there is any historical research showing how it was actually applied. "Summary" proceedings under military justice do not involve trials. For example, a summary courts martial is simply a hearing in front of the commanding officer. At most, the unlawful enemy combatants which fell under Article 82 would have a summary battlefield hearing before the capturing unit's commanding officer to determine if the capture fell under this definition. If the CO found that the capture did fall under Article 82, the result would be a summary hanging or shooting. Lack of cites duly noted. Assertion as proof. Ignore the other person's question, and just repeat yourself. "Bart"'s favourite MO. Cheers,
It is a conceit of lawyers that if it isn't "settled law" that the sun rises in the East, you have no basis for complaining about somebody claiming it rises in the West.
As far as I know, the SCOTUS has never decided the issue. While I do agree with you on the conclusion, I'm not convinced it's all that obvious. Your "colorable argument" boils down to nothing more than, "We don't have to actually follow the Constitution in emergencies." Well, yeah, that's what the defense of necessity is. The real test is whether there really was "necessity". Lincoln had a pretty decent case for it. In addition, at least one case, Ex Parte Field (no relation), 9 F. Cas. 1 (C.C.Vt. 1862), upheld Lincoln's power to suspend the writ under the militia clause. Somewhat ironically, perhaps, that court relied in part on Taney's opinion in Luther v. Borden as support for its conclusion. The SCOTUS later reached the same conclusion for a state governor in Moyer v. Peabody. Which did not retroactively make his action constitutional I'm not so sure. Congress expressly ratified Lincoln's actions. That may very well legalize it retroactively. certainly didn't render his order to arrest Taney reasonable. Agreed, but Taney wasn't actually arrested, so this point loses a lot of its force. We all do things under stress which we wish later we hadn't. I hope never to be under such stress as Lincoln was, but even then he didn't have the order carried out. (I'm assuming that the order was real. There remains some controversy over it, as I understand.) He merely had the law on his side, and blatently so. As indicated above, that's not so clear. The sad thing is, that had the judge been anybody but Taney, there might have been a real discussion and resolution of the issue.
"As far as I know, the SCOTUS has never decided the issue."
Again, so what? The SCOTUS hasn't ruled on the meaning of my wife's grocery list, either, but if she writes "1 gal. Whole milk" and I buy a liter of cream sherry instead, she's still right to be pissed. The Constution clearly and unambiguously grants to Congress, not the President, the power to suspend habeus. You don't need the SCOTUS to understand that, you need a basic grasp of the English language. The President no more has a "colorable" argument that he's entitled to do it himself, than the Speaker of the House has a "colorable" argument that he's entitled to sign legislation in the place of the President. I think there's something about a legal education that impairs one's capacity to distinguish reason from sophistry. Maybe because it's not a terribly useful distinction within the legal system, as reliant as that system is on the latter.
Brett: The Constution clearly and unambiguously grants to Congress, not the President, the power to suspend habeus.
Why? Because it's in Article I? There are other parts of Article I that do not apply to Congress--see Section 10. I agree that on the balance the power remains with the Congress, but it's not as crystal clear as you're making it out to be.
I don't need to ask the South what they thought of the "war of northern aggression". The causes and aims they sought to protect rightly belong to the dustbin of history.
But there's still sweeping up left to do. In all sincerity and appreciation for the differing opinions of others, I cannot understand how one would disagree with what I just said, and still hold as their aim the ennoblement, the enrichment, the freedom, and the dignity of all humankind. And that is clearly the legacy of Lincoln to which Obama refers. One may legitimately argue about the means by which Lincoln achieved this. One cannot credibly argue with the ultimate results. Nor can one credibly claim the current issues of the day have any potential - either by their own claims or by the standards Lincoln described and adhered to - to achieve any similar success. The commenters here seem to prefer to argue about angels and pinheads.
I don't need to ask the South what they thought of the "war of northern aggression". The causes and aims they sought to protect rightly belong to the dustbin of history.
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But there's still sweeping up left to do. In all sincerity and appreciation for the differing opinions of others, I cannot understand how one would disagree with what I just said, and still hold as their aim the ennoblement, the enrichment, the freedom, and the dignity of all humankind. And that is clearly the legacy of Lincoln to which Obama refers. One may legitimately argue about the means by which Lincoln achieved this. One cannot credibly argue with the ultimate results. Nor can one credibly claim the current issues of the day have any potential - either by their own claims or by the standards Lincoln described and adhered to - to achieve any similar success. The commenters here seem to prefer to argue about angels and pinheads.
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