Lincoln & The Court

Brian McGinty

Few presidents in U.S. history have pushed the limits of executive power, especially in the realm of national security, as far as has George W. Bush. But if President Bush has been criticized for using the crisis of war as a pretext for an unconstitutional “power grab,” another president was equally subject to such criticisms: Abraham Lincoln.

War has always required an enhanced role for the commander-in-chief. Decisions must often be made quickly, and in secrecy, to match the urgency of fast-moving national emergencies. Yet unlike that of the ancient Romans, our system of government is not suspended in wartime, nor are dictatorial powers granted. Power is — theoretically — shared among the executive, the Congress and the courts. In practice, however, U.S. presidents are given wide latitude in wartime to protect the nation, and oversight becomes, as recent events have demonstrated, problematic.

Lincoln was by many accounts the greatest wartime president in U.S. history. Now legal historian Brian McGinty lucidly explores how Lincoln exercised his constitutional powers to meet the national crisis, and reviews how the Supreme Court interpreted the legality of Lincoln’s wartime measures. Lincoln & The Court clearly illuminates the challenges of judicial oversight in wartime.

Decisions of the Supreme Court may be difficult to enforce while war rages, notes McGinty, especially when they contradict a wartime leader’s policies. Back in 1814, a federal judge in New Orleans ruled against General Andrew Jackson’s suspension of habeas corpus rights. General Jackson not only ignored the judge’s ruling but had the judge thrown in jail. When a federal district attorney demanded that the imprisoned judge be released, Jackson tossed the D.A. in jail, too.

Lincoln, like Jackson, heard himself called a dictator more than once. Lincoln’s constitutional “war powers” were tested before the Supreme Court several times, and McGinty meticulously not only describes these legal rulings but relates the factual background of each case, while painting detailed portraits of the Supreme Court justices who examined Lincoln’s actions. The towering judicial figure of the era, who passionately opposed Lincoln, was Supreme Court Chief Justice Roger Taney.

Taney had grown up on a Maryland plantation that had slaves, and he was pro-slavery. Taney’s infamous decision in Dred Scott v. Sandford, issued in 1857, attempted to resolve the constitutional questions surrounding slavery but only served to exacerbate them. Taney’s decision declared all African-Americans “so far inferior that they had no rights which the white man was bound to respect.” Moreover, Taney held that slaveowners had constitutionally protected property rights in their slaves, which were enforceable wherever the slaves might be.

This leads to McGinty’s description of how Lincoln, as a brilliant young lawyer and politician, staked his political future on a passionate opposition to Taney and the Dred Scott decision. When Lincoln ran against Senator Stephen Douglas in Illinois, Lincoln pointed out that Taney’s decision made any political compromise over slavery impossible. Under Taney’s logic, Lincoln declared, slavery went from being a Southern institution to a national institution. Although Lincoln lost to Douglas, he again assaulted Dred Scott during his 1860 run for the presidency. Lincoln’s most forceful response to Dred Scott was during his famous Cooper Union speech, which proved to be a milestone on his path to victory.

When the Civil War broke out in the spring of 1861, Lincoln faced Roger Taney again. After rioting broke out in deeply divided Baltimore, Lincoln suspended habeas corpus and authorized his generals to make arrests and hold suspected rebels without charges. John Merryman was arrested by Union military authorities on suspicion of sabotaging railroads. Merryman’s lawyer went to the federal circuit court in Baltimore seeking a writ of habeas corpus, and the request was received by Taney. He issued the writ demanding that Merryman be released and brought before a civilian court.

Taney’s action began a tense standoff between the commander-in-chief and the federal courts. When Taney’s writ was delivered to Fort McHenry, where Merryman was jailed, the commanding general refused it, citing President Lincoln’s suspension of habeas corpus. Taney was livid and blasted Lincoln in Ex Parte Merryman. Taney’s decision “was emphatic in concluding that the president…had no power to suspend the writ of habeas corpus,” and asserted that only Congress could do so, writes McGinty. Lincoln refused to obey Taney’s decision, asserting his sworn obligation to defend the nation: “re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

In the Prize Cases of 1863, the Supreme Court would uphold Lincoln’s decision to order a naval blockade of the South, even though Congress had not declared war. With the octogenarian Taney too ill to participate, the Court’s decision supported Lincoln’s response to the wartime emergency: “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”

In 1864’s Ex Parte Vallandigham, the Court again deferred to presidential power, refusing to overturn a military court’s conviction of an outspoken opponent of the president, former Ohio congressman Clement Vallandigham, who had condemned the draft and Lincoln’s “dictatorship.” By denying it had jurisdiction over military tribunals, the Supreme Court evaded major constitutional issues like free speech in wartime, the requirements of a fair trial, and the limits of political dissent. McGinty rightly explains that the Court was extremely hesitant to second-guess presidential powers in the midst of war. Only after the war was over and Lincoln had been assassinated did the Supreme Court assert oversight of military tribunals. In 1866, Ex Parte Milligan held that such tribunals could not try civilians if civilian courts were open.

In the book’s final chapter, McGinty examines the impact of these Civil War?era opinions. He praises Lincoln for his profound understanding that his war powers were strictly limited to the duration of the war. Welcome here would have been an exploration of how President Bush’s concept of a “Global War on Terror” brings the use of presidential war powers into perpetuity. McGinty never explores how an open-ended war like today’s might make presidential war powers permanent, forever changing the constitutional balance of powers. Lincoln & The Court offers readers a thoroughly researched and compelling analysis of Lincoln’s war powers, yet one wishes the author had been bold enough to speculate further about how we might best grapple with these issues today.