The Legacy of Lincoln?

By Kevin Patmore, Guest Blogger

Let me begin with a few disclaimers.
First, I am by birth a Yankee. In fact, my great, great, great, great grandfather and his wife immigrated to Indiana from Kentucky around the same time as and homesteaded one mile south of the Thomas Lincoln farm and were friends of the Lincoln family.

Second, I received my post-secondary education, both undergraduate and legal, in the South, including my undergraduate education at The Citadel, whose cadets notoriously fired the first shots of the Civil War – or in Southern parlance the "War of Northern Aggression" or "War for Southern Independence" -- in January, 1861.

Third, while I consider myself a Republican, I am more of a Libertarian or independent, as I do not put a lot of faith in party labels and "membership."
Fourth, I voted for former President Bush on his election and re-election.

Finally, and perhaps shocking not only to those who know me but to those who have read the above disclaimers concerning my military-school education and Republican (or worse) leanings, I tend to be anti-war, along with being anti-death penalty and "pro-life" insofar as the abortion debate may go.

As a Christian, I have a difficulty with the hypocrisy which appears to accompany being in favor of the government sanctioning the taking of human life – any human life, not just American human life – through either the death penalty or war, while conversely fighting to have the government make abortion illegal. Because I believe that all life is created by God, it is only his prerogative to end that life, and war (and abortion and the death penalty) may well be man’s interference with God’s exercise of His will.

Before I leave on too much a tangent of philosophical or theological thought (if I am not already too late ), I give these disclaimers only to show that while I did vote for Mr. Bush, but I do not blindly follow or support his policies. Rather, I have a great amount of professional respect for anyone of such high office, and support any President we have in establishing policies "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Consequently, I find particularly troubling statements by political leaders, their supporters and the popular press that Mr. Bush might be tried for war crimes, that he has engaged in conduct which has torn our Constitution to shreds which Mr. Obama must now repair, and similar lines of thought concerning Mr. Bush’s allegedly poor or illegal performance as President.

Unfortunately, too many people criticize the actions of our nation’s leaders, and make offhand comments about the constitutionality or legality of the President’s actions, while choosing to remain blissfully ignorant of history or the provisions of the Constitution.

Now, an exhaustive catalog of each President and his questionably-constitutional acts could be listed – such those of either President Roosevelt ranging from the covering up atrocities and genocide of civilians by our troops during and following our annexation of the Philippines, plotting the secession of Panama from Columbia and other acts by Theodore; to the "internment" of the Japanese and Nisei and other acts by Franklin – but on the occasion of the celebration of the bicentennial of his birth, a concentration on Lincoln’s acts would be most appropriate, especially when one considers that Mr. Obama cites Lincoln as his most admired President.

For a historical setting, most know that Abraham Lincoln was President at the time the United States engaged in military action against one-third of the States, in an effort to "preserve the Union" when these State’s determined to cease being united with the other states under the U.S. Constitution.

Most understand these few troubling years in our nation’s history to be the "Civil War."
Most do not know that prior to 1861, none of the prior 15 American Presidents ever had stated the position that our Constitution gave the United States’ government powers and authority greater than the several States’ individual governments. Rather, central to the Constitution – and one of the reasons the Constitution was ratified – is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, the central government was given only the powers as were expressly stated in the Constitution.

Furthermore, it was readily accepted at that time – as it had been for nearly 100 years – that the central government existed only by the consent of and for the convenience of the governed. Therefore, each individual State had the right to remove itself from the United States at its will and pleasure, as South Carolina had resolved to do in 1852, and as Massachusetts, Rhode Island, Connecticut, and some counties in New Hampshire and Vermont had considered during the War of 1812 (without any threat of interference by President Madison, which was averted only by the quick end to the war).

Lincoln, however, arrived at a novel conclusion that "I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments." (Lincoln, First Inaugural). So, according to Lincoln, some nascent "universal" or "fundamental" law alone compelled military action by the Federal Government to suppress the universal law which in 1776 was used as a basis for the Declaration that when any "form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute a new government."

Thus, as early as his first inaugural address – moments after taking office – it could be argued that Lincoln was putting asunder the foundations of our Constitution. Indeed, not even he claimed that his actions were authorized by the language of the Constitution but by some implication of the existence of government itself.

In any event, I noted above that most refer to what then occurred as the "Civil War." In reality, it was never a "war," as Lincoln’s military action against the States was pursuant only to an April 15, 1861 proclamation by Lincoln, whereas Article 1, Section 8 of the Constitution only permits Congress, and not the President, the right to declare war. Even if it were a Presidentially-declared "war," it was not a "civil war," insofar as a civil war is a internal war fought for the purpose of controlling a national government. The Southern States had no aim to take over the government of the United States headquartered in Washington, D.C., but rather they sought to leave the United States and form their own confederacy of independent States.

With the secession of Virginia, Lincoln feared several others would follow. If Maryland were to secede, it would have caused Washington to be surrounded by territory which no longer was a part of the Union. Rather than allowing the democratic system to work, Lincoln suspended the writ of habeas corpus in the State, sent the U.S. Army to occupy Annapolis, Baltimore and other parts of the State, and declared martial law. For those of you who are not attorneys, habeas corpus is one of the most important protections we have against unlawful arrest, and is the writ by which the judicial branch forces the executive officer to bring an accused held in custody before the judicial officer for a determination of the executive’s right to hold the person in custody.

Lincoln then had arrested thousands of Marylanders suspected of Southern sympathies, despite their committing no criminal acts, as the mere failure to positively state allegiance and support of the Union was deemed to be cause for arrest. (Lincoln stated: "The man who stands by and says nothing when the peril of his Government is discussed cannot be misunderstood. If not hindered, he is sure to help the enemy . . .."). Those seized by the military included 30 members of the Maryland legislature, an elected U.S. Congressman representing Maryland, the mayor and police commissioner of the City of Baltimore, and members of the Baltimore City Council who were deemed to be pro-secession. These political prisoners were imprisoned for months or years at various military prisons which had rather onerous living conditions, including such disciplines as being hung by the wrists and water torture.

One notable example of those imprisoned was a gentleman named Francis Key Howard, a newspaper editor of the Baltimore Exchange, who wrote an editorial which criticized the lack of congressional authorization for the war, and the suppression of the personal freedoms and civil rights of U.S. citizens in Maryland. Lincoln’s response: Arrest him and hold him without charge for over one year, part of the time in Fort McHenry, where his namesake grandfather ironically had penned words to a poem concerning a flag flying "o’er the land of the free and the home of the brave."

Best estimates of those imprisoned without charge or on charges which were baseless (i.e., a charge of treason for failing to affirmatively state or pledge one’s support of conscription or of Lincoln’s policies), range from 13,000 to 38,000 U.S. citizens. (For comparison, there are currently approximately 500 non-U.S. citizens held at Guantanamo Bay, after reaching a high of about 750 in 2002, who now have the right of habeas corpus guaranteed by the U.S. Supreme Court despite the Democratically-controlled Congress passing laws in 2005 and 2006 suspending the right).

I am an attorney. Lincoln was an attorney. Those of you who are not, but who had high school civics or government classes will know that there are 3 branches of the United States government, each having its own section of our Constitution. The right to suspend the writ of habeas corpus is found in Article 1, Section 9. It will take even those who are not attorneys, and who have not graduated from high school, about 5 seconds with a copy of the Constitution to find that Article 1 is the section for the Legislative branch, or the U.S. Congress, meaning that only that branch has that authority.

Notably, Lincoln maintained his practice of suspending habeas corpus by Presidential proclamation until 1863, well after a case had wound through the court system , and the U.S. Supreme Court had determined it to be unconstitutional for the President to unilaterally suspend the writ. After maintaining the suspension just long enough to show the Supreme Court who was boss, Lincoln finally had Congress take action to suspend habeas corpus in 1863.
Many to this day also hold to a belief that the U.S. Constitution (specifically the First Amendment) safeguards the freedom of the press.

Similar to the example of Howard in Baltimore, a perusal of Lincoln’s military orders will reveal many akin to that issued by Lincoln to General John Dix on May 18, 1864: "You will take possession by military force, of the printing establishments of the New York World and Journal of Commerce and prohibit any further publication thereof. You are to arrest and imprison the editors, proprietors and publishers." So much for freedom of the press and speech, as well as the right to due process and private property rights guaranteed by the Constitution.

Already noted was the use of torture on non-combatant and uncharged U.S. citizens. What, then, of actual enemy combatants? Keep in mind, under Lincoln’s understanding these individuals were U.S. citizens in insurrection, since under the "universal law" their individual States could not withdraw from membership in the United States and its privileges. Again, slovenly prison camps, poor food, disease and brutal conditions were de rigeur, along with various torturous practices.

One might consider Lincoln’s July 30, 1863 Order of Retaliation, which ordered that if a military commander determined that the South had executed a Union soldier, the Union would similarly execute a Confederate prisoner of war. As one might expect, a vast number of Union soldiers’ deaths were thereafter determined to be "executions," which permitted the summary execution of captured Confederate troops. Similarly, the U.S. placed Confederate prisoners of war among Union artillery, thus to discourage Confederate shelling of Union positions. Intentional starvation and other mistreatment was common.

This is not meant to unduly criticize my neighborhood’s favorite son. One can only imagine what our nation would look like this day if the Confederate States had been permitted to secede and how the course of history may have been changed, and I am quite certain the inside business of running this country is much like making sausage as Mr. Obama will soon learn. Many defend Lincoln’s course of action due to the human rights issue concerning slavery.

Even today, however, many ignore the historical fact that the elimination of slavery was for economic – rather than human rights – purposes for populist politicians of the day. In short, the availability of slave labor in the South threatened the ability of labor unions to negotiate higher wages for free labor in the North. Had the Southern States been permitted to secede, the United States would have been faced with a neighboring independent nation which, among other things: 1. Had a extensive border with the U.S., and was positioned better to extend its borders to the West through Texas in competition with the United States; 2. Had a ready source of labor for industrial development, with which it could easily develop industry or entice Northern-based industry to relocate to the South (think of Mexico in present day); and, 3. Controlled the mouth of the Mississippi River.

When one begins with the established notion that preservation of the Union against the will of several States to secede was an action unsupported by the Constitution or anything other than Lincoln’s idea of "universal law" and for economic rather than commonly-misunderstood humanitarian reasons – one certainly could question whether the means did justify the ends, especially when the means included the deaths of more than 600,000 Americans.

To accuse our last former President of war crimes – authorized by a Congress of which Mr. Obama was a part – while embracing the memory of Lincoln would, however, make one appear a bit hypocritical.