Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.
Questions about the legality of executive actions undertaken by the administration of George W. Bush dogged his presidency. From defining aspects of his Administration’s prosecution of the “war on terror,” to the more than eight-hundred signing statements he added to legislation, and the “midnight” administrative rules he rushed into effect during his waning days in office, the prerogatives of a “unitary executive” reigned – scripted by Dick Cheney, David Addington, Alberto Gonzales, Donald Rumsfeld, and John Yoo (see, e.g., Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody 2008; Fisher 2008). The Bush era seemed like Nixon redux, with the volume turned up. In David Frost’s legendary May 19, 1977 interview with Richard M. Nixon, dramatized on stage and screen recently in “Frost/Nixon,” the former president asserted his own, and Bush’s, view of presidential power with unabashed clarity:
President Abraham Lincoln did not share the Nixon/Bush view. The depth of Lincoln’s disagreement with his two successors becomes apparent in the course of Burrus M. Carnahan’s ACT OF JUSTICE.
FROST: So what . . . you’re saying is that there are certain situations . . . where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly.
Carnahan reads the January 1, 1863 Emancipation Proclamation as an action steeped in the rule of law. For Carnahan, President Lincoln’s “act of justice” was dictated by the “laws of war,” i.e., the rules governing relations among belligerents. Carnahan’s monograph tells the compelling story of how Lincoln artfully worked his way, in lawyerly fashion, to the conclusion that emancipation was unavoidable. “For most of his life,” Carnahan writes, “Abraham Lincoln earned his living by practicing law. He was a general practitioner, whose work ranged from the defense of accused criminals to the defense of property rights. When, as president, Lincoln weighed the issues raised by his most important and controversial exercise of the war powers, the Emancipation Proclamation, he would necessarily have viewed these in light of his practical knowledge of American law” (p.2). Carnahan is himself a lawyer. Having earned both a J.D. (Northwestern) and an LL.M. (University of Michigan), Carnahan holds an appointment as Professorial Lecturer in Law at The George Washington University. His academic appointment reflects Carnahan’s prior [*2] twenty-year career as an Air Force lawyer specializing in the law of war, and his contemporaneous work as foreign affairs officer in the Bureau of International Security and Nonproliferation at the U.S. Department of State. ACT OF JUSTICE is one lawyer’s skillful examination of another lawyer’s consummate work.
Carnahan starts at the beginning. A convincing storyteller, he paints a picture by setting the stage, establishing the context within which events unfold. When Confederate forces fired on Fort Sumter on April 12, 1861, Lincoln was a neophyte in international law. He may have been an experienced general practice lawyer, but Lincoln knew little about the rules regulating warfare. Even while responding, a week after the Fort Sumter attack, by issuing a proclamation blockading Southern ports, Lincoln is supposed to have observed: “I don’t know anything about the law of nations” (fn.2, p.173). Lincoln was a quick study. Massachusetts Senator Charles Sumner tutored him, “planting the seed” (Chap.1; pp.48, 61) of the Emancipation Proclamation by arguing that, under the Constitution, presidential war powers authorized the Chief Executive “to free the slaves in rebellious states” (p.5). Sumner derived his arguments from analysis that fellow Massachusetts citizen John Quincy Adams had fashioned during his tenure as a Member of Congress. Adams, in turn, drew upon his experiences, first, as James Monroe’s Secretary of State (1817-1825), then as President (1825-1829). On March 21, 1842, Congressman Adams delivered a speech in the House in which he linked emancipation with war powers, and the laws of war. Adams spoke as war with Mexico and Britain loomed over the status of Texas. In the event of war, Adams contended, slave states could maintain their “peculiar institution” (Stamp 1956) so long as these states could fend for themselves.
[B]ut if they come to the free states, and say to them, You must help us to keep down our slaves . . . then I say that with that call comes full and plenary power to this house and to the Senate over the whole subject. It is a war power. I say it is a war power; and when your country is actually at war . . . Congress has power to carry on the war, and must carry it on according to the laws of war; and by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them. . . . But when the laws of war are in force, what, I ask, is one of those laws? It is this: that when a country is invaded, and two hostile armies are set in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory. (p.14)
Although it became the legal linchpin of emancipation, Adams’ prescient assessment left many key questions unanswered. Dispositive issues remained unaddressed. Carnahan devotes the major part of his book, Chapters 2 through 5, to these matters.
First, and preeminently for Lincoln, was the status of slaves as property. Even if the laws of war swept away peacetime rules, the laws of war did not sanction unrestrained, wholesale violation of rights. As primary enforcers of the laws of war, military personnel were on the frontlines of interpreting such authority. [*3] In nineteenth century America, soldiers – mostly officers, in practice – were personally liable for damages should they be judged to have overstepped their legal authority (p.2; Chap.2). Carnahan explicates this tension between military authority to seize enemy slaves, on the one hand, and officers being answerable for violating property rights, on the other, by comparing two legal precedents. Carnahan’s discussion juxtaposes the late Chief Justice John Marshall’s views with those of the then-sitting Chief Justice Roger B. Taney, in the broader context of Taney’s defense of slave property in his DRED SCOTT opinion and Taney’s hostility toward President Lincoln’s civil war policies.
In his 1814 opinion in UNITED STATES v. BROWN, Chief Justice Marshall adopted his colleague Joseph Story’s war powers analysis – with a crucial qualification. Sitting as circuit judge in a trial resulting from the U.S. confiscation of a cargo of pine logs from one Armitz Brown during the War of 1812, Story upheld the seizure. Marshall embraced Story’s reasoning: “Respecting the power of government, no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded” (p.26). Nevertheless, in the event, the BROWN majority sided with the owner of the logs (Story dissenting). Marshall held that the Constitution required Congress to authorize seizing enemy property and no such statute had been adopted. Carnahan remarks: “In his opinion for the Court, Chief Justice Marshall also specifically noted that in [BROWN] the seizure had not been ordered or approved by the president as part of the government’s effort to prosecute the war. This statement would be extremely significant for the U.S. government almost fifty years later” (p.27). MITCHELL v. HARMONY stands in contrast to the BROWN Court’s view of lawful seizure. In his opinion, Chief Justice Taney sided with Manuel X. Harmony, a civilian merchant whose wagons and mules had been seized by Lieutenant David D. Mitchell during the Mexican War (1846-1848), holding the seizure an illegal taking under the Fifth Amendment. Taney’s ruling upheld a judgment of over $90,000 damages plus $5,000 costs against the hapless Lt. Mitchell, an astronomical price for following orders (which the Supreme Court rejected as a defense).
Carnahan summarizes the composite legal landscape of seizure in the wake of BROWN and HARMONY:
[U]nder the laws of war, the U.S. government and its military arms were not required to respect any rights of the owner of private property belonging to an enemy national. Private property owned by an American citizen, however, must be fully respected, even in wartime, because – except in the case of civil war – the laws of war would not apply to relations between a government and its own people. If military necessity required seizure or destruction of American property, the government must still compensate the owner. (emphasis added) (p.29)
Carnahan’s summary raises a second question that has philosophical and policy aspects. What was the status of the Confederacy: “criminal conspiracy [*4] or war” (Chap.3)? Lincoln confronted a knotty dilemma. Under the laws of war, in order for Union forces legally to “seize” (emancipate) Southerners’ enslaved “property,” a state of civil war had to exist between the Confederacy and the Federal government. But to characterize the conflict with the eleven States in rebellion as a civil war would confer on what Lincoln called the “so-called Confederate States of America” (p.61) a status completely contradictory to his bedrock view that, in principle, the Union was indissoluble. Doing so also would recognize the sovereignty of the Confederate States of America, inviting other nations, like Britain, to do so as well. Between April 1861 and April 1863, the Lincoln Administration adopted a time-honored lawyer’s approach to difficult predicaments – it finessed. (Charles Lindblom might say that Lincoln pioneered “muddling through”) (Lindblom). The two exceptions to the administration’s “legal ambivalence” (p.45) – proclaiming a blockade of Southern ports, and authorizing suspension of the writ of habeas corpus – resulted in confusion and a rebuke, respectively. For a blockade to be legitimate, it had to be a military measure, but the proclamation dictated that captured Confederate crew members be treated as criminals, not prisoners of war. This left Union “generals in the field without guidance on how to deal with the enemy – as a belligerent army or as an armed criminal conspiracy” (p.50). Lincoln’s April 27, 1861 suspension of the writ of habeas corpus from Philadelphia to Washington, D.C. generated a case that gave Chief Justice Taney the chance to reject the president’s order as unconstitutional in EX PARTE MERRYMAN. “In 1861 . . . Taney was not ready to accord President Lincoln the same deference he had given to the governor of Rhode Island in a much less serious insurrection [LUTHER v. BORDEN]” (P.52).
During the first fifteen months of the Civil War, circumstances on the ground created exigencies that eventually became Union necessities. Not to put too fine a point on the situation, the South was winning; or, at least, not losing. The mortifying July 1862 failure of Gen. George B. McClellan’s five-month Peninsula Campaign made it “clear that the Confederacy was still strong, and the U.S. Army not quite strong enough, to bring the war to a close” (p.103). Intriguingly, in the key section of his book, Chapter 7, Carnahan frames this state of affairs, as Lincoln saw it, in terms of physics and geometry, and of Article I, §8, Clause 18. Chapter 7 is titled, “Military Necessity and Lincoln’s Concept of the War.” Carnahan could have titled it “Valences and Emancipation” because Chapter 7 traces how force of circumstance shaped Lincoln’s intellectual path, from opposing proclaiming emancipation in autumn 1861 to drafting such a proclamation in July 1862. “President Lincoln’s . . . view of the war [w]as primarily a problem of physics and geometry, requiring the application of superior force at the correct places in order for the North to prevail” (p.94). In two telling quotations, Carnahan provides this revealing window into how Lincoln perceived the Civil War:
I state my general idea of this war to be that we have the greater numbers, and [*5] the enemy has the greater facility of concentrating forces upon points of collision; that we must fail, unless we can find some way of making our advantage an overmatch for his; and this can only be done by menacing him with superior forces at different points, at the same time. . . . [Using colored troops] is not a question of sentiment or taste, but one of physical force, which may be measured, and estimated as horse-power and steam-power are measured and estimated. (p.94)
His task, as Lincoln saw it, was to satisfy himself, as well as convincing the American people (and, not incidentally, “a candid world”) of the legality of emancipation resulting from the military necessity of emancipation. Differently stated, was executive emancipation “necessary and proper”? Carnahan argues that Lincoln was of two minds regarding the Necessary and Proper Clause. When it came to waging war, Lincoln adopted John Marshall’s “Federalist/Whig” (p.95) view. “[F]or example, the president approved orders allowing army commanders when operating in rebel territory, to take any private property ‘which may be necessary or convenient for their commands, for supplies or other military purposes,’ or to have private property ‘destroyed, for proper military purposes’” (p.96). Emancipating human beings held as property required “a stricter [Jeffersonian] standard of military necessity” (pp.97, 96). “[A]n emancipation proclamation would only be issued when it appeared to the president that without it, the Union’s war effort would be rendered ‘nugatory’” (p.96).
The Confederate defeat of the Federals at the Seven Days’ Battles, June 25-July 1, 1862, rendered Lincoln’s hope for a foreseeable Union victory nugatory. “During a carriage ride to a funeral on July 13, only a few days after returning to Washington [from visiting Gen. McClellan], Lincoln first revealed to Gideon Welles and William Seward that he ‘had given it much thought and . . . had about come to the conclusion that we must free the slaves or ourselves be subdued’” (p.104). The remaining question was, on what legal grounds could the president free the slaves? Lincoln’s answer was to cast the Emancipation proclamation as a “Weapon of War” (Chap.8), “[i]n modern terminology . . . a weapon of both economic and psychological warfare” (p.121). “In its final form, the Emancipation Proclamation was based on two of the government’s belligerent rights under the law of war. It relied on the right to seize and destroy enemy property for reasons of military necessity, and on the right to seek allies through promising liberty to an oppressed people” (p.117). The second rationale is Lincoln’s radical innovation (at Senator Sumner’s urging, conveyed by Treasury Secretary Salmon P. Chase). In his 1852 DROIT DES GENS, Swiss jurist Emmerich de Vattel had written: “to deliver an oppressed people is a noble fruit of victory; it is [also] a valuable advantage gained, thus to acquire a faithful friend” (p.115). By treating Southern slaves as oppressed human beings to be liberated, as well as enemy property to be seized, Lincoln melded law with morality.
When writing about Abraham Lincoln, or reviewing writing about Lincoln for [*6] that matter, it is a challenge to resist resorting to clichés and superlatives. Nevertheless, the story of Lincoln’s act of justice lends itself to invoking the phrase “necessity is the mother of invention.” More precisely, Lincoln’s Emancipation Proclamation underscores the fact that necessity is not necessarily the mother of invention. Necessity creates the possibility – not the inevitability – of invention. Here’s the superlative: Lincoln’s genius manifested itself in his ability to employ military necessity to midwife “a new birth of freedom.” Although Burrus Carnahan did not witness Lincoln’s recreation of the American Republic, he is an acute observer who provides readers a lucid account of how lawyer Lincoln slouched toward harnessing the laws of war, grounding his executive act emancipating American slaves on the military necessity of defeating the Confederacy in order to save the Union. Carnahan shows us how a president can act audaciously and lawfully, at the same time. His book offers potential lessons for our own perilous time.
Fisher, Louis. 2008. THE CONSTITUTION AND 9/11: RECURRING THREATS TO AMERICA’S FREEDOMS. Lawrence, KS: University Press of Kansas.
“Frost/Nixon.” 2008. Universal Pictures.
Lindblom, Charles E. 1959. “The Science of Muddling Through.” 19 PUBLIC ADMINISTRATION REVIEW 79.
Morgan, Peter. 2007. FROST/NIXON. London, UK: Faber & Faber.
Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody. http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf.
Stamp, Kenneth M. 1956. THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH. New York, NY: Knopf.
DRED SCOTT v. SANDFORD, 19 Howard 393 (1857).
EX PARTE MERRYMAN, 17 Fed Cas. 144 (Circuit Court, District of Maryland, 1861) (Case No. 9,487).
LUTHER v. BORDEN, 7 Howard 1 (1849).
MITCHELL v. HARMONY, 54 U.S. 115 (1851).
UNITED STATES v. BROWN, 8 Cranch 109 (1814).
© Copyright 2009 by the author, James C. Foster.