Recently, Steven C. Harper asked me about my thoughts about the ideas in “The Broken Constitution” by Noah Feldman. The book presents a provocative argument that Abraham Lincoln’s actions during the Civil War were necessary breaches of the Constitution to ultimately preserve and rebuild the Union. Feldman asserts that Lincoln’s unconstitutional measures—including suspending the writ of habeas corpus, trying civilians in military courts, shutting down newspapers, and ignoring Supreme Court orders—were justified in the face of an existential crisis. However, I cannot endorse this viewpoint. I believe that no emergency can justify the suspension of constitutional rights, as doing so undermines the very foundation of government itself.
In this blog post, I will delve into the ways Lincoln violated the Constitution, as well as explore the broader implications of these actions. By re-examining the role and limits of government in times of crisis, I will argue that the preservation of natural rights must remain paramount, even in the face of significant challenges.
Lincoln’s Violations of the Constitution
1. Suspending the Writ of Habeas Corpus
One of Lincoln’s most significant constitutional violations came in the form of suspending the writ of habeas corpus. Traditionally, this writ serves as a fundamental protector of individual liberty, allowing individuals detained to challenge the legality of their imprisonment in court. On April 27, 1861, just weeks after the outbreak of the Civil War, Lincoln suspended the writ along the route between Washington, D.C., and Philadelphia, enabling the military to detain individuals without trial indefinitely.
Lincoln justified this action on the grounds of preserving public safety and suppressing rebellion. However, his unilateral decision contradicted Article I, Section 9 of the Constitution, which states that the suspension of habeas corpus may only occur during times of rebellion or invasion as authorized by Congress. Instead of seeking legislative approval, Lincoln acted independently, disregarding the checks and balances that the framers placed in the Constitution.
By suspending the writ of habeas corpus, Lincoln set a dangerous precedent. It established a model in which the executive branch could circumvent the law in times of crisis, undermining the liberties that the Constitution was designed to safeguard.
2. Trying Civilians in Military Courts
Another troubling aspect of Lincoln’s presidency was his decision to try civilians in military courts. During the Civil War, Lincoln authorized military commissions to prosecute individuals accused of crimes against the military and the Union. This decision raised ethical and legal questions, as it meant that civilians could be denied their constitutional right to a trial by jury and due process in a civilian court.
The most infamous case was that of Lambdin Milligan, a civilian accused of conspiring against the government. In 1866, the Supreme Court ruled in Milligan v. Hardy that trying civilians in military courts was unconstitutional when civilian courts were operational. This ruling highlighted the critical constitutional tenet that military authority should not supersede the rights of civilians unless absolutely necessary.
Lincoln’s use of military commissions represented an abuse of power, reflecting a willingness to prioritize national security over individual rights. It also set a troubling precedent for future administrations to bypass judicial norms during times of conflict, undermining the very principles of justice that the Constitution embodies.
3. Shutting Down Newspapers and Jailing Journalists
Lincoln’s administration also engaged in censorship, shutting down newspapers that criticized the government and arresting journalists who published dissenting opinions. In an effort to control public discourse and maintain morale during the war, Lincoln authorized the suppression of media outlets deemed harmful to the Union cause.
One notable example is the case of the Chicago Times, which was shut down for its critical reporting on Lincoln’s policies. The administration labeled dissenting voices as treasonous, which stifled legitimate criticism and raised serious concerns about freedom of the press—a cornerstone of democracy protected by the First Amendment.
By infringing upon the rights of the press, Lincoln eroded the foundational principles of democracy that guarantee open discussion, dissent, and a check on governmental power. This suppression of freedom of expression not only threatens the health of a democratic society but also risks leading to a slippery slope of further governmental overreach.
4. Ignoring Orders from the Supreme Court
Perhaps most strikingly, Lincoln occasionally ignored the authority of the Supreme Court regarding his wartime policies. In 1861, the Court ruled in Ex parte Merryman that the president lacked the authority to suspend the writ of habeas corpus. Rather than comply with this judicial order, Lincoln continued his policy of suspension, arguing that his actions were necessary to protect the Union.
This blatant disregard for Supreme Court rulings reflects Lincoln’s assertion of executive power over judicial authority during emergencies. While Lincoln may have believed that his actions were necessary for the greater good, the Constitution provides a vital framework to safeguard against abuses of power by any branch of government. By ignoring the Court’s orders, Lincoln undermined the principle of judicial review and the checks and balances that are essential to a functioning democracy.
Feldman’s Justification and My Counterarguments
In “The Broken Constitution,” Noah Feldman argues that Lincoln’s legal transgressions were necessary to preserve the Union and ensure a future democracy. He posits that such extreme measures, while regrettable, are permissible under extraordinary circumstances. However, we must critically evaluate whether the ends can truly justify the means when the means involve the subversion of constitutional protections.
The Role of Government
At the core of this discussion lies the fundamental question: What is the proper role of government? Many constitutional scholars would contend that the primary role of government is to protect the natural rights of individuals, including life, liberty, and the pursuit of happiness. When government actions infringe upon these rights, it oversteps its mandate and violates the trust bestowed upon it by the consent of the governed.
In this light, Lincoln’s actions during the Civil War represent a significant breach of that mandate. While the threat to national unity was indeed substantial, the government’s purpose is not to preserve itself at the expense of individual rights. An emergency situation does not negate the obligation of the government to protect those rights, as failure to do so risks undermining the very principles that the nation was founded upon.
The Limiting Principle of Government
To further explore the limits of governmental authority, we must assess the notion of a “limiting principle.” A limiting principle imposes boundaries on governmental power—its violation indicates a breach of the social contract. In terms of constitutional governance, these boundaries are set by the same principles that grant the government its authority.
Governments operate effectively only when they uphold the rule of law and respect the natural rights of individuals. If a government can justify the infringement of these rights based on emergency circumstances, it sets a dangerous precedent that could be exploited in future crises. The fear of disruption cannot serve as a blanket justification for abandoning constitutional protections.
In my opinion, no emergency is sufficient to allow the government to violate its clear mandate to uphold natural rights. A government that prioritizes expedience over principle invites tyranny, creating a pattern wherein rights can be continuously eroded. Once the line is crossed, the government risks establishing a framework of oppression, wherein the “necessity” of action is cited as a rationale for erosion of liberty.
Noah Feldman’s thesis in “The Broken Constitution” presents an argument for the necessity of Lincoln’s constitutional violations during the Civil War, yet I stand in opposition to his conclusion. The actions Lincoln undertook—suspending the writ of habeas corpus, trying civilians in military courts, censoring the press, and disregarding court orders—represent dangerous precedents that threaten the very foundations of American democracy.
In times of crisis, it is essential to remind ourselves of the proper role of government and the limiting principles that exist to protect natural rights. While the preservation of the Union was undeniably critical, it should never come at the expense of the inalienable rights that the Constitution was designed to uphold. In a healthy democracy, the rights of individuals must remain sacrosanct, serving as the touchstone for governmental authority in all circumstances.
Future leaders must heed the lessons of Lincoln’s presidency, recognizing that no emergency can justify the suspension of constitutional principles. A robust democracy is predicated not only on the consent of the governed but also on a steadfast commitment to safeguarding the rights that define our humanity. The real challenge lies in navigating crises without resorting to policies that compromise the very rights and liberties we seek to protect. If we only believe in the constitution when it is convenient, then we don’t believe in the constitution.
