The constitutional powers of the commander-in-chief in time of war are critical to the system established by the framers. Lincoln’s analysis and exercise of the commander-in-chief’s war powers during the Civil War both serve to illuminate those powers. Given the Supreme Court’s decision in the Hamdan case this past week, it may be an opportune moment to revisit some history.
Lincoln’s primary aim as commander-in-chief was of course the preservation of the Union — the restoration of democracy and the rule of law among the seceding states. He meant to demonstrate that “among free men, there can be no successful appeal from the ballot to the bullet; and that those who take such appeal are sure to lose their case, and pay the cost.” Indeed, as Professor Daniel Farber recalls in Lincoln’s Constitution, Lincoln originally called up the militia in the name of the rule of law because “the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed” by “combinations too powerful to be suppressed by the ordinary course of judicial proceedings.”
In subduing the Confederacy, Lincoln took his bearings by his constitutional duty to “preserve, protect and defend the Constitution.” Though this is the subject for another day, it should be noted that, given the Supreme Court’s handiwork in the Dred Scott case, he was not an advocate of judicial supremacy. As president and commander-in-chief, he suspended habeas corpus, used martial law, instituted military trials, and exercised power to the limits of his constitutional authority in a manner that suggests the loose nature of those limits when confronted by necessity. Yet Lincoln preserved the rule of law and became the Great Liberator.
As Farber notes, “several Civil War actions taken under military authority impinged on freedom of speech.” Perhaps best known is the case of former Ohio Congressman Clement Vallandingham. As commanding general of the Department of Ohio, Ambrose Burnside prohibited “the habit of declaring sympathies for the enemy.” In the spring of 1863, Burnside had Vallandingham arrested for violating the order in a speech calling the war “wicked, cruel and unnecessary.” As Farber recounts, “he called upon his audience to [use the ballot box to] hurl ‘King Lincoln’ from his throne.” The echoes of Vallandingham in the Democrats’ recurrent gibes at President Bush are surely inadvertent. The Peace Democrats of 1863 nevertheless sound remarkably like today’s Peace Democrats.
In any event, the military commission found Vallandingham guilty of violating Burnside’s General Order No. 38 and ordered him confined until the war ended. The ensuing controversy elicited Lincoln’s famous letter to Erastus Corning defending the policy of military arrests in the name of public necessity. Lincoln ultimately resolved the controversy over Vallandingham’s conviction and confinement by banishing him to Confederate territory (from which he escaped to Canada).
From the case of Vallandingham, Farber moves on to consider the case of the New York World. The case of the World combines elements of the 2004 presidential campaign and the role played by another New York newspaper today in a way that gives it a surprisingly contemporary feel. As Farber tells it:
Two journalists forged an Associated Press story about a bogus presidential call for drafting four hundred thousand men. (As a signal of desperation by the president, this “news” was supposed to drive up the price of gold, allowing the two men to make a quick profit.) The World fell for the stunt and published the story. Suspecting a Confederate plot, Lincoln ordered the arrest of the editors and publishers, as well as the seizure of the premises. This put the newspaper out of business until the order was countermanded.
(Footnote omitted.) This post closely follows Farber’s book at pages 170-173 and 176. For more, see Professor Michael Paulsen’s brilliant review of Farber’s book in the spring 2004 issue of the University of Chicago Law Review, Mark Neely’s Pulitzer Prize-winning The Fate of Liberty, and William Rehnquist’s All the Laws But One.