The following essay was written by Marshall DeRosa for Nomocracy in Politics. Professor DeRosa is a Nomocracy in Politics contributor.
Many Americans self-identify as being conservative in their political orientations, while simultaneously idolizing President Lincoln. What they fail to realize is that the current state of American politics is in large measure due to their presidential idol. This presents a serious obstacle in their, thus far, futile attempts to recover the traditional rule of law and the commensurate limited government embedded therein.
President Lincoln’s so called greatness rests upon four pillars: He saved the Union; He freed the slaves; He enhanced the core principles of equality, liberty, and democracy; The United States, if not the world, is better off because of his actions.
These pillars rest upon a foundation of sand. Consider a very brief rebuttal to Lincoln’s greatness.
First, Lincoln did not save the Union, he destroyed the old Union, which was based upon the consent of the States, and replaced it with a unitary system of government under the control of a mostly unaccountable and corrupt ruling class.
Second, Lincoln may have freed the slaves, but only as a pragmatic response so as to undercut the Confederacy’s war effort. Lincoln’s claim to fame for freeing the slaves begs an important question: would slavery have been more humanely ended within an independent Confederacy within a few short years? This is certainly plausible in regards to the upper South and eventually throughout the Confederacy. We will never know with certainty, but what if emancipation could have been achieved more humanly, effectively, and constitutionally as a States’ Rights prerogative, as was the case in the North? This question is rarely asked, and when asked, it is not taken seriously. As recently documented, Lincoln’s policy towards slaves did not create a panacea but rather a living hell for the emancipated.
Third, Lincoln was not equally committed to equality, liberty, and democracy. He was primarily rhetorically committed to democracy on a national scale, as a political manuever to accrue political power. Furthermore, a national democracy based upon the consent of the governed properly understood, is an impossibility in the real world of politics. Lincoln was no fool and understood this political reality. This explains why he unleashed a commitment to equality that was not the equality before the law that the Framers had in mind, but rather a monumental step towards the U.S. Government as the guarantor of equality.
And fourth, because the commitment to equality has been elevated to the fundamental core principle, the U.S. has become a “creedal nation” determined to spread its equality dogma at every opportunity. The creedal nation aims to transform the world, at the barrel of a gun if necessary. This was the experience of the Confederacy and it underpins, at least rhetorically, U.S. actions during the Spanish-American War, WWI, post WWII, military actions in Vietnam, Iraq and beyond.
So-called Conservatives’ idolization of President Lincoln is not compatible with a U.S. Government constrained by the original U.S. Constitution. It is, however, compatible with rationalizing government actions so as to achieve unconstitutional policy objectives.
It is well beyond the scope of this essay to address the constitutionality of secession, but it is the nine hundred pound gorilla in the room that cannot be ignored. Jefferson Davis was correct in stating that to equate secession with rebellion is “a gross abuse of language.” The Southern States that formed the Confederacy were not in rebellion against the United States. Secession was the act of sovereign peoples within their respective States. Once secession was formalized and the Confederacy formed, the United States Government lacked jurisdiction over the Confederacy. The Southern people were not in rebellion against the U.S. Government, they simply wanted to remove that government’s jurisdiction over them. In order to be in rebellion against the United States, they would have had to owe allegiance to the United States Government. Secession formally, legally, and constitutionally withdrew that allegiance. They were, however, in a state of war with the United States, the aggressor, and in open armed hostility to defend their respective States and the newly established Confederacy.
For the sake of argument let’s concede that secession was not constitutional. This raises the questions, were President Lincoln’s actions constitutional (even if pursued to prevent an, arguendo, unconstitutional violation) and are they currently laudable from a conservative perspective? Consider the following:
Despite the moral problems with American slavery, the slave’s labor was the property of the slave owners and recognized as such in the U.S. Constitution, U.S. case law, U.S. statutory law, and the legal counterparts in those States in which slavery was recognized.
With that said, was Lincoln’s Emancipation Proclamation (EP) to manumit slaves constitutional? The answer is an emphatic no. The primary purpose of the EP was to incite a slave insurrection when all of the anticipated slaughter would take place within the Southern States and not under the control of Union armies. Where in the U.S. Constitution does the U.S. chief executive have such powers? It should be remembered that this wartime tactic was resorted to by King George III and noted in the Declaration of Independence as evidence of the king’s “repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.”
It is safe to assume that if the Framers of the U.S. Constitution had explicitly or even implied such a presidential power, ratification would not have been close to receiving the approval of nine of the States.
To make matters worse, Lincoln’s EP was to be affected only in those States where “the people whereof shall then be in rebellion against the United States.” The EP was a war measure created so as to appease foreign powers and to wreak havoc upon Southern society. Lincoln realized that if the Union was going to prevail the law of nations needed to be set aside. War, as a sort of gentlemen’s duel between armies, would not suffice in and of itself. The war had to be directed against Southern society, of which Southern slavery was a pivotal part. Lincoln’s two front war against both the Southern armies and Southern society was epitomized by General Sherman’s brutal march to the sea. In other words, the EP was the first step in modern war’s “mass destructive scale” under the direction of the U.S. President.
Lincoln’s duplicity in issuing the EP is evidenced by the promulgation in April 1863 of a revised military code, General Orders 100. Crafted in collaboration with the authoritarian Prussian, Francis Lieber, Article 24 states that
Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service.
The EP makes a mockery of General Order 100, by continuing to allow slavery in areas under the control of Union armies and emancipating them in areas under Confederate control. The EP stipulates:
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States 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 said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
Mr. Lincoln claimed that his power to issue the EP was “by virtue of the power in me vested as Commander-in-Chief.” In Federalist 69, even the nationalist Alexander Hamilton cautioned against such an interpretation. He wrote, “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
Nothing in Article II, section 2, authorized Lincoln, in his capacity as the Commander-in-Chief, to confiscate the property of Southerners, including the labor of slaves. Had the Congress moved in that direction it would have been constrained by the “just compensation” clause of Amendment V. Moreover, the EP failed to distinguish between Unionists, neutrals, and Confederates within the C.S.A., thereby violating the due process of law provision of the same amendment.
When the fog of the Civil War lifted and the Radical Republicans took control of the U.S. Government, it became evident that neither slavery nor the Constitution is what really mattered. This is the “argument of necessity”. What did matter was power and controlling that power to the advantage of the dominant ruling class. That is, the war was a means to power qua Union, and whatever is necessary to accumulate and exercise that power is ipso facto constitutional. In other words, Lincoln was empowered to incite and promote the indiscriminate slaughter of U.S. citizens in the quest for power, i.e., the argument of necessity.
The argument of necessity becomes the touchstone of POTUS’s constitutional powers. In the case of Lincoln, consent of the governed, the constitutional rule of law, fundamental rights and liberties are all subservient to POTUS’s determination, to the best of his ability, “preserve, protect and defend” [not the Constitution of the United States but] the Union as empire. Union as empire is an important qualification. Had Lincoln let the Southern States go in peace, he still would have had his Union, albeit a somewhat smaller and poorer one.
At what point (and this is highly relevant today) does preserving the Union transcend preserving fundamental rights such as life, liberty, property, and a government based upon the consent of the governed with a federal framework? And who is to decide when that point has been reached? I encourage readers to reconsider the “Facts.” The Declaration of Independence promulgates as evidence that King George III intended to establish an “absolute Tyranny over these States” that would benefit the British Empire’s ruling class. The Declaration instructs the colonies qua States that it is their “duty to throw off such Government . . . “as to them shall seem most likely to effect their Safety and Happiness.” In 1776 Americans did not wait for approval from their English/British masters, and neither did their 1860/61 Southern progeny. They witnessed the accumulation of unaccountable power and reacted accordingly.
The ongoing idolization of Lincoln, perpetuated by his current-day apologists, blinds many so-called Conservatives to important political realities. For example, the argument of necessity has been used by most modern Presidents’s exercise of the Article II war powers, the terra firma upon which Lincoln built up and stood.
The U.S. Supreme Court, part and parcel of the ruling class, has been consistently acquiescing to that view. For example, in Youngstown Sheet & Tube Companyv.Sawyer (1951), Chief Justice Vinson’s dissenting opinion argues on behalf of expanding presidential powers based upon the argument of necessity. Relying on and commending Lincoln’s expansion of executive powers, he argued,
The most striking action of President Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority. In an action furnishing a most apt precedent for this case [i.e., President Truman’s seizure of the privately owned steel mills], President Lincoln, without statutory authority, directed the seizure of rail and telegraph lines leading to Washington. Many months later, Congress recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation. This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President’s acts had been without legal sanction until ratified by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed. Opponents insisted a statute authorizing seizure was unnecessary, and might even be construed as limiting existing Presidential powers.
Justice Black, rejecting the expansion of executive powers, asserted that “[t]he Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure [of domestic steel mills] order cannot stand.” Why? According to Justice Black, the U.S. Congress did not authorize President Truman to seize the steel mills’s owners’s private property. Had the Congress statutorily concurred with Truman’s argument of necessity, then the president would be free to act.
Presidential discretion, with or without legislative compliance, is a very weak reed upon which to rest fundamental rights. Today, with the ever-growing size of government and increasing executive powers, it behooves us to recall the Founders’s fear of the centralization of political power. When one considers the crucial role Mr. Lincoln played (and continues to play via uncritical acceptance of his greatness) in the enhancement of centralized political power, it is oxymoronic to be an admirer of the Founders and Mr. Lincoln.
If corporate railroad lobbyist/lawyer Lincoln, politician extraordinaire, altered “the shape of necessity” through a horrific war against his fellow Americans, what is to prevent his successors from doing the same? The American Civil War not only cleared the way for a huge expansion of national power, but also proved to be highly profitable for the Northern white-ruling class. As we have been recently instructed by our current elites, a crisis is a terrible thing to waste. Or better yet, create a crisis and then run with it. Anyone who has taken the time and effort to study the events leading up to Major Anderson’s surrender of Fort Sumter, and more recent national policies, understands the risks involved with centralizing so much power in so few hands, whether the year is 1863 or 2013.
So-called Conservatives either need to get right with President Lincoln or President Obama. To idolize the former and abhor the latter is illogical. Lincoln and Obama are cut from the same cloth and genuine Conservatives would reject both.
Marshall DeRosa is Professor of Political Science at Florida Atlantic University.
 See Kirkpatrick Sale, Emancipation Hell: The Tragedy Wrought By the Emancipation Proclamation 150 Years Ago (CreateSpace Independent Publishing Platform, 2012).
 343 U.S. 579 (1952).