Phillip Shaw Paludan

“Dictator Lincoln”: Surveying Lincoln and the Constitution

he Civil War was a constitutional crisis. It tested the ability of dictator in one form or another. The event that inspired and legitimated the Constitution to survive a direct threat to one of its fundamen- these accusations was Lincoln’s clash with the Chief Justice of the Unit- Ttal elements, the peaceful process of changing governments by ed States Supreme Court Roger B. Taney over the fate of Confederate

elections rather than bloodshed. Edmund Burke once said that consti- sympathizer John Merryman. On April 27, 1861 Lincoln had authorized Downloaded from tutional discussion was a sure sign of an ill governed state. But surely the suspension of the privilege of the writ of habeas corpus in the area the capacity of the United States to create a Constitution that survived between Philadelphia and Washington, DC. Merryman was arrested by intense crisis suggests that Burke was wrong. There was much to dis- the army while trying to burn bridges, cut telegraph lines and organize cuss about powers and liberties before, during, and after the war, and a pro-Confederate militia. His lawyer asked Justice Taney to issue a writ without this discussion the Constitution would not endure as the gov- of habeas corpus to free his client. But the offi cer holding Merryman erning document of the United States (1). rejected the writ and Merryman remained in jail. Taney wrote an exten- http://maghis.oxfordjournals.org/ The most compelling of the discussants sive and stern opinion explaining why Lin- was Abraham Lincoln. His eloquence and coln had violated the Constitution. “The his insights combined to provide argu- people of the United States are no longer a ments about equality, democracy, and the Lincoln acted quickly and decisively, government of laws,” Taney said, “but ev- Constitution, still known around the world. and alone, for ten weeks. Clearly this ery citizen holds life liberty and property On June 19, 2006 a Google search revealed at the will and pleasure of the army offi cial that there were 83,800 Internet sites which was a time when the Constitution’s in whose military District he may happen mention Bush, Lincoln and war powers. three branches of government were to be found” (5). As the search suggests, the topic of Lincoln Taney’s opinion legitimized opposi- and the Constitution is an abiding one and collapsed into one. Three days after tion nationwide. Southern states com- at :: on November 26, 2013 signifi cant in the life of the nation. It is the fi ring on Fort Sumter, Lincoln peted with northern Democrats attacking important to know what thoughtful people called for Congress to meet in a Lincoln’s “tyranny.” Alexander Stephens have said about his relationship to this na- claimed that Lincoln had “hoisted the ban- tion’s fundamental law. special session. But it was a special ner of consolidation” to destroy the rights We generally think of constitutional ar- session that would be held on July of states. By late 1862 Benjamin Curtis, gument as conservative, a debate over the a former justice of the United States Su- rules, and how to obey those rules, rather 4, 1861. Meanwhile Lincoln set the preme Court, and one of the dissenters in than disobeying them. But from the begin- country on the road to war. the Dred Scott case, published a pamphlet ning the union crisis raised fundamental that accused Lincoln of assuming dictato- and revolutionary concerns. White south- rial power. The London Times agreed, es- erners claimed that their right to survive as pecially after Lincoln issued the Emanci- a new nation rested on their constitutional right to nullify federal law pation Proclamation; here was a sign, the Times said, of the “absolute and to secede. Lincoln met those constitutional declarations with con- despotism of the present government in Washington.” The Democratic stitutional rebuttals, designed to inspire his audiences to reject and Party sprayed charges of tyranny all over its newspapers, pamphlets, defy those claims and, at the last, to give their lives to preserve the and speeches. Democrats quickly saw a boon to their cause. As one put Constitution. it, “The most notable way of impeding [the Republicans] is to knock them Most historians applaud Lincoln’s constitutional argument. But Da- down with ‘the Constitution’ every time they rise to the surface and begin vid Zarefsky, a scholar of communications, raised the interesting point to swim out” (6). that when Lincoln and Douglas invoked the Constitution they raised The passage of time did not eliminate the accusation. In 1890 Lord the stakes of their debate from a matter of policy to a matter of truth. Bryce thought of Roman emperors and Oliver Cromwell when he as- Rather than simply debating which laws might have been chosen by sessed Lincoln’s presidency. When American scholars began studying rational lawmakers, the two men threw the hallowed founders of the Lincoln’s actions, they accepted the idea of a dictatorship with various nation and the sacred Ark of the Covenant at each other. Zarefsky here degrees of approval. In 1897, William Archibald Dunning, known best echoes Daniel Walker Howe’s observation that “If one calls an oppo- for his hostility toward Reconstruction, forecast that hostility by speak- nent’s proposals unconstitutional it makes them seem more dangerous ing of a temporary dictatorship with the powers of government “con- and illegitimate than if they were simply unwise” (3). centrated in a single department,” the presidency. James Ford Rhodes Practically from the day he took offi ce, however, Lincoln was called a saw constitutional dictatorship in the Lincoln administration and dis-

8 OAH Magazine of History • January 2007 Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ approved of action suppressing newspapers and of civil liberty restric- tions but pointed out that Lincoln’s “loyal and unselfi sh nature” kept him from the excesses of Napoleon or Caesar. John W. Burgess justifi ed Lincoln’s extraordinary powers by speaking of the spirit of the Constitu- tion which allowed dictatorial power in times of national crisis. In the aftermath of World War I James G. Randall produced what would be the standard study of Lincoln and the Constitution, Consti- tutional Problems under Lincoln (1926). A scholar deeply devoted to the president, Randall wrote that if Lincoln was a dictator he was a “benevolent dictator.” Unlike other dictators Lincoln had used his extraordinary power in behalf of democracy, not to overthrow it. By the time Randall issued a revised version of Constitutional Problems in 1951 the world had experienced Hitler and Mussolini and Sta- lin, and the Lincoln scholar was fed up with the accusation: “That Lincoln was a strong executive does not of course signify that he was a dictator . . . . Since the word ‘dictator’ suggests Hitler or oth- er totalitarian rulers the contrast between their hideous methods

and those of Lincoln is so evident that it needs no comment” (7). The fi ring upon Fort Sumter in April, 1861, precipitated the constitutional crisis Downloaded from World War II and the subsequent civil rights movement profoundly that led to civil war. View of South East Angle of the fort in December 1863. (Image affected scholarship on Lincoln and the Constitution. The war itself Courtesy of Library of Congress, Prints and Photographs, LC-USZ62-14908.) showed the benefi cial effects of national power to defeat real dictator- ships. Political scientist Clinton Rossiter wrote a comparative study of Interested in the constitutional claims, they looked beyond or beneath crisis governments during war and placed Lincoln’s power alongside Lincoln’s understandings and actions; they did not engage them (11). leaders in Germany, France, England and the United States. He ap- Constitutional history itself was also losing infl uence within the http://maghis.oxfordjournals.org/ proved of supreme unchecked executive power in times of crisis. The profession as a whole. More and more scholars took up social history, fact that he was talking about Lincoln, of course, made the idea of “con- until a majority of American historians identifi ed themselves as social stitutional dictatorship” more acceptable (8). historians and studied topics not easily related to Lincoln and the Con- Civil rights gained momentum from the war too. Reaction to the stitution. Some were attracted to Bertold Brecht’s statement, “Unhappy Japanese internment increased sensitivity on racial matters. Defeat of the land that is in need of heroes.” Although Lincoln had risen from the Nazi’s and their despicable racial policies undercut the authority of common soil, he was too much the Dead White Male icon to merit American racism. The lawyers in the case of Brown v. Board of Educa- scholarly attention from the New Left. tion enlisted the efforts of constitutional historian Alfred Kelley and Social historians did provide analyses and information that po- other respected historians while challenging racial segregation. Some tentially challenged, not Lincoln himself, but the social and economic scholars participated in the March on Selma, Alabama. In this environ- achievements of his age, something I pointed out in a commentary on at :: on November 26, 2013 ment scholars critical of Lincoln moved to the margins of historiog- Gabor Boritt’s classic Lincoln in the Economics of the American Dream raphy. The fi eld of constitutional history came to be dominated by a (Memphis, Memphis State University Press, 1978) (12). The key ques- brigade of Lincoln defenders (9). tion: To what extent was Republican economic policy responsible for Those on the margins occasionally spoke out. Scholars and authors mid-century inequalities? But only historian Kenneth Winkle paid seri- of the “New Left” criticized Lincoln for his tardiness in emancipation ous attention to social history issues in his work, The Young Eagle (2001) at the same time that they subordinated his importance in comparison (13). Meanwhile, constitutional historians, though occasionally upset at to actions by ordinary men and women. Dwight G. Anderson, another their own marginalization, perhaps feeling defensive about it, focused political scientist, brought a psychological spin to a New Left analysis of on defending their hero, essentially from accusations of tyranny. dictator Lincoln. The president felt compelled to overthrow the Fram- The consensus of these historians is that the charge of dictatorship ers’ system so that could achieve lasting fame. He created a new Union collapses once Lincoln is seen in the context of the politics of his time which he made into a political religion. In 1968, refl ecting reaction (14). First, the fact that his opponents were allowed to frequently and to the Vietnam War, political scientist, Gottfried Dietze described how vociferously denounce Lincoln as a dictator refutes the charge. Had Lincoln increased his powers in wartime until he became “an omnipo- Lincoln been the tyrant he could have fi lled the jails of the country with tent, national executive who as spokesman for the people might consid- his accusers. Practically every Democrat in the North had indicted him. er himself entitled to do whatever he felt was good for the nation” (10). Some breached decency and the law. A Wisconsin editor wrote, “The Such criticism could provoke the pro-Lincoln brigade to the president’s man who votes for Lincoln is a traitor because Lincoln is a traitor and a defense. But with one exception this argument seldom focused on con- murderer. And if he is elected to misgovern for another four years, we stitutional questions. trust some bold hand will pierce his heart with a dagger point for the A collection of essays commemorating the bicentennial of the Con- public good” (15). The editor was not arrested. Almost all of Lincoln’s stitution did discuss, at length, constitutional questions. But its goal critics were free to speak and to publish. Furthermore no election, at was to challenge Lincoln’s importance: “Lincoln regarded the consti- any level of the polity from village mayor to county commissioner, to tutional text as a closed repository of permanent constitutional mean- state treasurer, to congressional representative, to senator, to president ing,” law school professor Hendrik Hartog observed. But the essayists of the United States was canceled. Indeed the election of 1864 turned “rejected the youthful Lincoln’s vision of American citizenship as a out 80 percent of the eligible voters. And given a choice between those passive, although watchful conservatorship. They reject his concep- who accused Lincoln of tyranny and the “tyrant” himself, the voters tion of the Constitution as an estate to be husbanded. They reject any in that year chose the “tyrant” by the largest margin since Jackson’s delegation of interpretive responsibility to a distant legal priesthood.” second election (16).

Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ OAH Magazine of History • January 2007 9 Furthermore, Lincoln was a temporary “tyrant.” National elections ed waters. On April 19, he blockaded rebel ports, an action which in came every two years and voters were free to throw out of power the international law required a declaration of war. The Constitution gives president and/or the Congress. The president simply assumed that he Congress the power to declare war, but lawmakers were visiting their would turn over the offi ce should he lose to General McClellan in 1864. constituents while they awaited the Fourth of July. On the April 20, Lin- On several occasions Lincoln remarked that he exercised his extraordi- coln ordered Secretary of the Treasury Salmon Chase to spend money nary powers only while the war went on. With the war over he would for defense. The Constitution requires that money should be spent operate in more traditional ways (17). only by congressional appropriation. Two weeks later Lincoln called for This is not to say that Lincoln’s record was clean. Newspapers were volunteers to enlarge the Army and the Navy. The Constitution gives suppressed, Democratic speakers went to jail, and private letters were Congress the power to raise armies and maintain navies, but the mem- opened. Military courts and commissions did exercise arbitrary power. bers of Congress were not available. On April 27, the president told the Lincoln at times sounded like a threat to even mild dissent: “The man commanding general of the army that he might suspend the writ of who stands by and says nothing, when the peril of his government is habeas corpus should it seem necessary to the general. The Constitu- discussed, can not be misunderstood. If not hindered, he is sure to tion places the power to suspend the writ in Article 1 which describes help the enemy. Much more, if he talks ambiguously—talks for his legislative powers. But there was no national legislature in town. country with ‘buts’ and ‘ifs’ and ‘ands’” (18). Finally on July 4, 1861 Congress gathered and Lincoln provided his But the numbers of people jailed for political reasons were small constitutional argument for his independent actions. It was broad and and, as Yogi Berra might have put it, nobody went to jail for saying innovative. His actions “whether strictly legal or not, were ventured

nothing. After an exhaustive search of the federal records of these ar- upon under what appeared to be a popular demand and a public neces- Downloaded from rests Mark Neely has found that most of the people subject to military sity; trusting then as now that Congress would readily ratify them. It arrests were not antigovernment orators or editors. They were taken as is believed that nothing has been done beyond the constitutional com- union armies occupied rebel territory (most frequently in Border States petency of Congress” (25). In effect the president might execute a law and especially Missouri), or when they cheated soldiers with shoddy before Congress passed it, if he believed that Congress would pass it goods, or smuggled, or interfered with draft registration (19). later. On the specifi c matter of habeas corpus Lincoln famously said, Daniel Farber provides a thoughtful and generally favorable picture “are all the laws but one to go unexecuted and the government itself go http://maghis.oxfordjournals.org/ of the president’s actions. He reminds readers, as had Harold Hyman to pieces lest that one be violated? . . . in such a case, would not the of- in his classic, A More Perfect Union, of the institutional context in which fi cial oath be violated if the government should be overthrown?” Later civil liberty questions arose. The generally weak state of the national in the war Lincoln declared, “I conceive that I may in an emergency do government and its legal force meant that “Military arrests and trials things on military grounds which cannot be done constitutionally by were required by the pathetic state of the federal government’s legal ap- Congress.” In both word and deed the president exercised extraordi- paratus.” Farber argues that without a modern legal bureaucracy such nary powers during time of war (26). as the Justice Department and the FBI, and with only eighty-one federal Farber offers a balanced assessment of Lincoln’s 1861 actions.. “On attorneys in the entire nation, and because of the necessity to arbitrate the most important items—calling up the militia, deploying the mili- the differences among cabinet members, generals, staff members, and tary and imposing a blockade— [Lincoln] was clearly acting within con- Congress, “Lincoln was in no position to act as a dictator even if he had stitutional bounds.” But in other ways Lincoln overstepped his bounds. at :: on November 26, 2013 wanted to.” At the same time, Farber does argue that Lincoln went too When he expanded the regular military without congressional approval far in Vallandigham and Milligan, one of the few to do so (24). and when he used government funds to help private parties pay early But it should be recalled that Farber is a professor of law, not a war expenses, he defi ed what the Constitution clearly stated. However, historian. We need studies informed by the historian’s knowledge of Congress supported his actions after the fact, thus supplying some context. Of course, the question of Lincoln, dictator or not, is binary; signifi cant constitutional approval. Overall, Farber notes, “the Union either /or propositions about historical events and actors are too sim- marched to war in general compliance with the Constitution” (27). ple. Everyone agrees that Lincoln had an expansive view of his powers With all this discretion what strikes modern historians is how re- under the Constitution. How expansive is the issue. James Randall of- spectful Lincoln was of constitutional limitations on the extent of his fered a useful discussion by noting the difference between the pow- power. (28) Most obviously, Lincoln consistently placed himself within ers of Congress and that of the chief executive under the Constitution. constitutional limitations. Even the infamous query asking “Are all the While Congress has enumerated lawmaking powers, the “legislative laws but one to go unexecuted and the government itself go to pieces powers herein granted,” the president may exercise “executive power” lest that one be violated?” was not a plea justifying lawbreaking. While with no discussion of what that might be. In addition, the president most historians, even Lincoln defenders, overlook how Lincoln fol- takes an oath to preserve, protect and defend the Constitution of the lowed the question with a denial that he had broken even one law. Lin- United States, another sweeping assertion. Furthermore, the clause coln never simply asserted his power under the old rubric inter armes making him commander-in-chief requires him “to take care that the silent legis. Harold Hyman appropriated Randall’s title, as well as his laws be faithfully executed.” Another vagary pregnant with discre- judgment, in insisting that, “There were constitutional problems un- tionary action. This fl exibility allowed Lincoln to grasp broad powers der Lincoln” (29). for his offi ce. Lincoln was a lawyer and knew the importance of claiming the And he acted quickly and decisively, and alone, for ten weeks. Constitution in the war. The president provided justifi cations under Clearly this was a time when the Constitution’s three branches of gov- the Constitution for suspending the privilege of the writ in his July 4 ernment were collapsed into one. Three days after the fi ring on Fort message to Congress, in his ten to twelve page letter to Erastus Corn- Sumter, Lincoln called for Congress to meet in a special session. But ing; and in a similar letter to Ohio Democrats. He argued the unconsti- it was a special session that would be held on July 4, 1861. Meanwhile tutionality of secession at length in his fi rst inaugural speech and his Lincoln set the country on the road to war. On April 15, he called out the July 4, 1861 message. He wrote an extensive opinion on conscription. state militia—75,000 from every state in the union, north and south. A Thinking like a lawyer was a profound part of his makeup. A word militia act of the 1790s authorized this. But then he sailed into unchart- count of his Collected Works reveals that Lincoln used the word “Consti-

10 OAH Magazine of History • January 2007 Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ tution” 1263 times and the word “law” 1323 times. By contrast he used strong argument in favor of the necessity of doing so. It might also be the words “liberty” 259 times, “democracy” 138 times, and “equality” noted that Lincoln’s argument did not assert the claim that “necessity 155 times. knows no law.” The necessity of the act was a crucial part of what made The most controversial of his acts as president was, of course, the it legal (34). Emancipation Proclamation, freeing all the slaves in places still in re- Of course the constitutional argumentation by Lincoln does not bellion as of January 1863. In this document, Lincoln claimed the cover disprove the charge of dictatorship. But it does show his constitutional of the Constitution. Critics on the right attacked him for stirring up concerns and it allows us to set a standard by which to judge his jus- a servile war, encouraging amalgamation of the races and, of course, tifi cations. Scholars have noted the use of the war powers and once violating the Constitution. One opponent declared the proclamation again have justifi ed his actions. Herman Belz argues that “A sound “undoubtedly one of the most startling exercises of the one-man power Constitution makes necessary power available in time of emergency; which the history of human government free or despotic has ever wit- if it does not and the Constitution is simply set aside, its legitimacy nessed.” From the left came charges that Lincoln freed the slaves in and effectiveness as a political law for peacetime government will be places where he could not touch them and left those he could touch eroded . . . there are times when the rule of law is threatened by further still in chains. Richard Hof- adherence to the rule of law. stadter famously demeaned In those situations not only the proclamation as having is decisive action by a single “all the moral grandeur of a individual to be risked, it is

bill of lading” (30). required” (35). Downloaded from But it is just this critique Guelzo’s book on the which reveals the constitu- Emancipation Proclamation tional signifi cance of the Proc- similarly endorses Lincoln’s lamation. As Allen Guelzo use of the war power not only and others have observed, the with regard to emancipation document is written in dry but also with civil liberties. http://maghis.oxfordjournals.org/ legal language because Lin- The president challenged pro- coln was performing an act testing Democrats by noting under the Constitution. He that the Constitution gave the was changing the legal status president more power over of over two and a half million those liberties during the war slaves. Guelzo comments, “It than in times of peace. Guel- is one of the greatest of Ameri- zo notes, “the logic behind can historical oddities that the Lincoln’s dealing with [eman- document Lincoln labored so cipation] was identical” (36). studiously to keep within the Lincoln’s respect for the at :: on November 26, 2013 bounds of the Constitution constitutional order is also should be the very document A print based on David Gilmour Blythe’s fanciful painting of Lincoln writing the Emancipa- refl ected, Don Fehrenbacher his critics exhibit as proof that tion Proclamation. In a cluttered study Lincoln sits in shirtsleeves and slippers, at work reminded readers, by his Lincoln had no regard for the on the document near an open window. His left hand is placed on a Bible that rests on a respect for the traditional copy of the Constitution in his lap. The scene is crammed with symbolic details and other Constitution” (31). federal union. He noted that meaningful references. A bust of Lincoln’s strongly Unionist predecessor Andrew Jackson Lincoln responded, when sits on a mantlepiece near the window at Lincoln’s right. A bust of another former Presi- with the exception of West Salmon Chase asked him to dent, James Buchanan, who was widely viewed as ineffectual against secession, hangs by Virginia “the integrity of the extend the Proclamation to a rope around its neck from a bookcase behind Lincoln. The scales of justice appear in the rebellious states was never cover occupied territories, left corner, and a railsplitter’s maul lies on the fl oor at Lincoln’s feet. (Image courtesy of the seriously threatened.” Schol- that “The original proclama- Library of Congress, LC-USZC4-1425). ars trained by Harold Hyman tion has no constitutional or in the 1960s emphasized the legal justifi cation except as a military measure.” Military necessity did abiding respect for the power of states even in a war that destroyed state not apply to the exempted areas. If he acted simply on moral grounds, sovereignty and established a permanent national union (37). William “would I not thus give up all footing upon Constitution or law? Would Harris, studying Lincoln’s reconstruction policy also emphasized Lin- I not thus be in the boundless fi eld of absolutism” (32). Michael Voren- coln’s respect for state rights (38). Proposals in Congress to territorial- berg’s 2001 study of the creation of the Thirteenth Amendment argues ize the South were defeated by impressive majorities. Lincoln himself that Lincoln was so concerned about preserving the Constitution that had a traditional view of the union as a union of states and it was that he was reluctant at fi rst to accept the Thirteenth Amendment as the union he was trying to restore. To illustrate this respect, contrast the proper means to end slavery. He shared the belief of many Americans, fact that Lincoln asked the Border States to end slavery, respecting the that the document as it stood provided the most secure foundation for states right to determine such issues, even while he was using his war American liberty (33). powers to end slavery in the still rebellious parts of Dixie. The princi- Farber affi rms that Lincoln was within his constitutional rights in pal achievement for American nationalism under Lincoln’s leader- issuing the proclamation. Under the rule of the war powers, both in the ship, Fehrenbacher says, “was the negative one arresting a drift to- nineteenth century and in modern times, combatants have the right ward decentralization that had become a plunge into disintegration” to destroy and or confi scate the property of the enemy. Necessity was (39). The contrast between that disintegration and a secure postwar the ultimate factor determining when such acts could be performed. nationalism had misled historians to overemphasize the degree of It should be noted that Lincoln, in justifying emancipation, made a Lincoln’s nationalism.

Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ OAH Magazine of History • January 2007 11 Implicit in the discussion of Lincoln’s dictatorship is the question Press, 1979 ), 23. See also Bestor, “American Civil war as Constitutional of his constitutional philosophy. If Lincoln was a dictator then clearly Crisis,” 328. he had either no respect for the Constitution or he interpreted the doc- 4. See the revisionist writings of Avery Craven, T. Harry Williams, and James G. ument in a way which made it so fl exible, that it became whatever he Randall as discussed in Merrill Peterson, Lincoln in American Memory (New wished it to be. Lincoln clearly had enough respect for the Constitution York, Oxford University Press, 1994), 302-310. that he cited it often and claimed to be following it. His success in sav- 5. Ex parte Merryman, 17 Federal Cases 144. 6. Don E. Fehrenbacher, “The Paradoxes of Freedom,” in Lincoln in Text and ing the union and freeing four million slaves provided an endorsement Context (Stanford: Stanford University Press, 1987), 130-31; “Lincoln and the for a fl exible Constitution, a “living” Constitution responsive to the Constitution,” in Lincoln in Text and Context, 116; Democrat quoted in Harold needs of the people as they faced crises beyond the ken of the found- Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction ing fathers. Lincoln thus could be injected into the constitutional argu- on the Constitution (New York: Alfred A. Knopf, 1973), 78. See also, 88-89. ments of modern times over how free judges and presidents might be 7. James G. Randall, Constitutional Problems under Lincoln (Urbana: University to interpret the Constitution fl exibly (40). of Illinois Press, 1951) xxix-xxv, 47. Conservative critics deplored Lincoln’s fl exibility. Willmore Kendall 8. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern claimed that he had transformed the Constitution from a document in Democracies (Princeton: Princeton University Press, 1948). which states had created a national government and deserved defer- 9. Indicative of how much on the margins the anti-Lincoln authors were, Don ence into a new union which rested on the ideal of the equality. As Her- Fehrenbacher, who writing on the “The Anti-Lincoln Tradition” in 1987, man Belz describes it, “according to Kendall, Lincoln placed the United spoke of only four academic authors, Ludwell Johnson, M.E. Bradford, William Appleton Williams, and Dwight G. Anderson. He does note the

States on the road to centralized egalitarianism by making equality Downloaded from criticism by the “New Left” of Lincoln’s unfortunate commitment to the a supreme commitment and the standard of judgment in American political institutions of his time. Lincoln in Text and Context. 207-213 politics. Lincoln did this by assigning the Declaration of Independence 10. Dwight Anderson, Abraham Lincoln: The Quest for Immortality (New York: constitutional status, undermining the tradition of community self- Alfred A. Knopf, 1982); Gottfried Deitze, America’s Political Dilemma: From government under majority rule and legislative supremacy.” In this Limited to Unlimited Democracy (Baltimore: Johns Hopkins University Press, new union national power might hurdle constitutional restraints to 1968). spread egalitarianism. Liberals on the other hand applauded the very 11. The Constitution and American Life, ed. David Thelen (Ithaca, NY: Cornell http://maghis.oxfordjournals.org/ fl exibility the conservatives hated (41). University Press, 1988), 353-54. Perhaps the most extreme example of this fl exibility is seen in a 12. Phillip S. Paludan, “Commentary on ‘Lincoln and the Economics of the work by a law professor. George Fletcher, in Our Secret Constitution: American Dream’” in The Historian’s Lincoln: Pseudohistory, Psychohistory, How Lincoln Redefi ned American Democracy argued for an equality that and History, ed. Gabor Boritt (Urbana: University of Illinois Press, 1988), included economic justice as well as equality before the law. This al- 116-24. lowed him to create a Constitution that for the fi rst time embodied 13. Kenneth J. Winkle, The Young Eagle: The Rise of Abraham Lincoln (Dallas: equality for all (42). Fletcher’s argument went far beyond what Lincoln Taylor Trade Publishing, 2001). 14. Popular writers and nonhistorians, however, still persist in calling him a would agree to by proclaiming that Lincoln freed himself from consti- dictator. See David Detzer, Dissonance: The Turbulent Days between Sumter tutional restraint in the middle of war. This was a lawyer’s brief advo- and Bull Run (New York: Harcourt, Inc., 2006). George Fletcher, Our Secret at :: on November 26, 2013 cating modern equality by claiming that a nineteenth-century president Constitution: How Lincoln Redefi ned American Democracy (New York:, Oxford had established it. University Press, 2001). On July 4, 1861 Lincoln asked “Is there in all republics, this in- 15. Editor quoted in Phillip Shaw Paludan, A People’s Contest: the Union and Civil herent and fatal weakness?” “Must a government, of necessity be too War (Lawrence, KS: University Press of Kansas, 1996), 233. strong for the liberties of its own people, or too weak to maintain its 16. Herman Belz, “Lincoln and the Constitution: The Dictatorship Question own existence?” (43). The Civil War ultimately answered both ques- Reconsidered,” in Abraham Lincoln, Constitutionalism, and Equal Rights in tions in the negative. During the confl ict answers weren’t always clear the Civil War Era (New York: Fordham University Press, 1998) provides the but the impassioned debate that raged helped to demonstrate the vital- best analysis of this issue. See Harold Hyman, A More Perfect Union (New ity of the constitutional process. It helped that Lincoln with his power- York: Alfred A. Knopf, 1973), 70-73. ful commitment to equality and the rule of law was the president. At 17. Roy P. Basler ed., The Collected Works of Abraham Lincoln, 8 vols. (New Brunswick, NJ: Rutgers University Press, 1953-1955) (hereinafter Collected times perhaps he reached too far. His devotees may have excused him Works), 4: 267, 302. too often. But his depth and complexity makes the ongoing work of 18. Collected Works, 4: 265. scholars on the crises of disunion and war even more worthwhile. T 19. Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York, Oxford University Press, 1991) esp. chap. 6; Phillip Shaw Paludan, The Endnotes Presidency of Abraham Lincoln (Lawrence, KS: University Press of Kansas, 1. Arthur Bestor, “The Civil War as a Constitutional Crisis,” American Historical 1994), 71- 79. Review 68 (January 1964): 327-52; Harold Hyman, A More Perfect Union: 20. Arthur Schlesinger, Jr., War and the Constitution: Abraham Lincoln and the Impact of the Civil War and Reconstruction on the Constitution (New York: Franklin D. Roosevelt Seventeenth Annual Robert Fortenbaugh Memorial Alfred A.Knopf, 1973). Lecture (Gettysburg, PA: Gettysburg College, 1988) provides a thoughtful 2. Herman Belz, “Lincoln and the Constitution: the Dictatorship Question discussion. Reconsidered,” and “Abraham Lincoln and American Constitutionalism,” 21. Paludan, Presidency of Abraham Lincoln, 71-79. in Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War 22. Phillip Shaw Paludan, “A People’s Contest”: The Union and Civil War Era (New York: Fordham University Press, 1998); Michael Les Benedict, “A (Lawrence, KS: University Press of Kansas, 1996), 240-45. Constitutional Crisis,” in Writing the Civil War: The Quest to Understand, ed. 23. Frank L. Klement, Dark Lanterns: Secret Political Societies, Conspiracies, and James M. McPherson and William J. Cooper, Jr. (Colombia: University of Treason Trials in the Civil War (Baton Rouge: LSU Press, 1984). South Carolina Press, 1998). 24. Daniel Farber, Lincoln’s Constitution (Chicago: University of Chicago Press, 3. David Zarefsky, Lincoln, Douglas and Slavery in the Crucible of Public Debate 2003), 144-46. (Chicago: University of Chicago Press, 1990) 138-40; Daniel Walker Howe, 25. Collected Works, 4: 426. Arthur Schlesinger, Jr., War and the Constitution: The Political Culture of the American Whigs (Chicago: University of Chicago Abraham Lincoln and Franklin D. Roosevelt.

12 OAH Magazine of History • January 2007 Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ 2007oah annual meeting Celebrating Our Centennial Join 2,500 teachers, historians, and other conference participants exploring the best new work in U.S. history. Enjoy the many high quality presentations, discussions, and events, and help celebrate 100 years of OAH’s leadership in the fi eld of American history.

26. Collected Works, 7: 281 MVHA 27. Daniel Farber, Lincoln’s Constitution, 143. 28. See Guelzo, “Apple of Gold in a Picture of Silver: The Constitution and Liberty” in The Lincoln Enigma: The Changing Faces of an American Icon (New York: Oxford University Press, 2001); Fehrenbacher, “Lincoln and the Constitution,” in Lincoln in Text and Context; Belz, “Lincoln and the

Constitution: The Dictatorship Question Reconsidered,” in Abraham Lincoln, CENTENNIAL Constitutionalism, and Equal Rights in the Civil War Era. 1907 – 2007

29. Harold M. Hyman, Lectures at University of Illinois, 1963-1968. Don Downloaded from Fehrenbacher, “Lincoln and the Constitution,” in Lincoln in Text and Context, place: Minneapolis, Minnesota 121; and James McPherson, “Lincoln and Liberty” in Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991), date: March  - April ,  59-60; Sanford Levinson, “Abraham Lincoln, Benjamin Curtis and the HIGHLIGHTS Importance of Constitutional Fidelity,” The Green Bag: An Entertaining

Journal of Law, 2d Series 4 (Summer 2001): 424 omit Lincoln’s denial that http://maghis.oxfordjournals.org/ he had broken a single law. OAH CENTENNIAL PLENARY 30. Richard Hofstadter, The American Political Tradition and the Men Who Made Presidential Memories It (New York: Alfred A. Knopf, 1989), 131. Mary Frances Berry • Carl Degler • Eric Foner • John 31. Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in Hope Franklin • Richard Leopold • David Montgomery • America (New York, Simon & Schuster, 2004), 191, 198. Vicki Ruiz • Anne Firor Scott • Richard White 32. Collected Works, 4: 428. 33. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge University Press, 2001), 6-15. PLENARY SESSION 34. Farber, Lincoln’s Constitution, 154-55. Evangelical Religion in America 35. Belz, Abraham Lincoln, Constitutionalism, and Equal Rights, 92. Th is session features lectures by George Marsden, author 36. Guelzo, Lincoln’s Emancipation Proclamation, 207. of many books on the religious history of America, includ- at :: on November 26, 2013 37. Harold Hyman, A More Perfect Union; Phillip S. Paludan, A Covenant with ing Jonathan Edwards: A Life (2003), and Lisa McGirr, Death: The Constitution, Law and Equality in the Civil War Era (Urbana: Suburban Warriors University of Illinois Press, 1975); Michael Les Benedict, A Compromise of author of . Jon Butler, distinguished Principle: Congressional Republicans and Reconstruction, 1863-1869 (New York: historian of American religion, will respond. Norton, 1974). 38. William Harris, Lincoln’s Last Months (Cambridge, MA: Harvard University OFFSITE SESSION LOCATIONS INCLUDE Press, 2004) ; William Harris, With Charity for All: Lincoln and the Restoration Andersen Library and Minnesota Population Center, of the Union (Lexington: University of Kentucky Press, 1999). University of Minnesota • Weisman Art Museum • 39. Fehrenbacher, Lincoln in Text and Context, 116-19. Minnesota History Center 40. See Walter Murphy, James Fleming, and William Harris, II, American Constitutional Interpretation (Mineola, NY: Foundation Press, 1986) cited by Belz, “Abraham Lincoln and American Constitutionalism,” 73. TOURS INCLUDE 41. Willmore Kendall, and George Carrey, The Basic Symbols of the American A Labor and Industrial Tour of the Minneapolis Historic Political Tradition (Baton Rouge, LSU Press, 1970), 85-94; Belz, “Lincoln and Milling District, led by NPS historian Dave Wiggins. the Constitution,” 24. 42. George Fletcher, Our Secret Constitution (New York: Oxford University Press, “Bob Dylan’s American Journey,” a two-hour tour that 2001). will visit sites where he lived, performed, and recorded. 43. Collected Works, 4: 426. AND MORE Phillip Shaw Paludan is Naomi Lynn Distinguished Professor of Lincoln Stud- Off site sessions and tours, the exhibit hall, fi lms, recep- ies at the University of Illinois, Springfi eld. He is the author of A Covenant with tions, networking events, and luncheons Death: The Constuition, Law and Equality in the Civil War Era; Victims: A True Story of the Civil War; A People’s Contest: The Union and Civil INFORMATION War, 1861-1865; and, The Presidency of Abraham Lincoln (which won the prestigious Lincoln Prize). He has received fellowships from the Guggenheim Complete program, listing sessions and participants, is Foundation, the American Council of Learned Societies, and Harvard Law available online at . Preregistration School. He taught NEH Summer Seminars for Teachers on fi ve occasions. deadline is March 8, 2007.

Copyright © Organization of American Historians ▪ All Rights Reserved ▪ http://www.oah.org/ OAH Magazine of History • January 2007 13