Tucker Carlson has served a valuable service in giving voice to qualms that should ruffle the political consensus that has driven our support of Ukraine. He seeks to highlight uncomfortable facts that should belie the uniparty consensus, or at least make it more thoughtful. Last night he devoted his opening monologue — “Everybody is lying” (video) — to denouncing Ukraine President Zelensky as a tyrant.
Tucker’s monologue was predicated on Zelensky’s suspension of 11 political parties (including the chief opposition party) and the merger of national TV channels into one platform. The Daily Mail summarizes these moves in this story.
Listening to Tucker last night, I thought he could easily have made a similar case against Abraham Lincoln during the Civil War (and risked his freedom in the process). Let us take a look back over our shoulder to see if our own history may help us think through an argument that supports Zelensky’s actions.
I don’t proclaim that Zelensky’s actions are necessarily justified or taken in good faith. They may mark him as a tyrant. I don’t know. I only know that Ukraine is in a fight for its life and that necessity may have some bearing on Zelensky’s actions. Under the circumstances, at this point I give him the benefit of the doubt. I offer the following to complicate Tucker’s indictment.
Under our own system, the constitutional powers of the commander-in-chief in time of war are critical to the system established by the framers. Both Lincoln’s analysis and Lincoln’s exercise of the commander-in-chief’s war powers during the Civil War illuminate those powers.
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 (2003), 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.” 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 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 moved 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 in a way that gave it a surprisingly contemporary feel. As Farber tells it (footnote omitted):
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.
Lincoln’s construction of the war powers of the commander-in-chief was not particularly deferential to the separation of powers. When Chief Justice Taney ordered Lincoln to free John Merryman on the ground that Lincoln’s suspension of habeas corpus was unconstitutional, for example, Lincoln respectfully disagreed and ignored Taney’s order.
Lincoln enunciated his understanding of public necessity enhancing the constitutional powers of the president during wartime on many occasions, perhaps on no occasion more memorably than in his 1864 letter to Albert Hodges on the Emancipation Proclamation:
I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I can not remember when I did not so think, and feel. And yet I have never understood that the Presidency conferred upon me an unrestricted right to act official upon this judgment and feeling. It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power. I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government — that nation — of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it. I could not feel that, to the best of my ability, I had even tried to preserve the constitution, if, to save slavery, or any minor matter, I should permit the wreck of government, country, and Constitution all together.
My point, and I do have one, is that Zelensky’s exercise of executive power under the dire circumstances that he and his countrymen face may be justly supported by the claim of necessity.
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