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the fate of liberty

12 november 2008

It is well-known, in a manner part-meme part-factoid, that Abraham Lincoln was a terrible flouter of civil liberties. Value judgments about that flouting take several forms. The Lost Cause school of historiography saw Lincoln as a fiendish tyrant bent on erasing the First Amendment. Pro-Lincoln historians have tended to see Lincoln as either an all-wise embodiment of the actual spirit of the Constitution during a rebellion, or as a benevolent pardoner of those innocent souls swept up by the radical zeal of Cabinet members William Seward or Edwin Stanton. The definitive study of Lincoln's actual suppression of civil liberties is Mark Neely's Fate of Liberty (1991). This Pulitzer-Prize-winning book offers nuance and complication instead of meme and factoid. Neely's study is well worth reading in this post-9/11 era. In fact I hold out some hope that President-Elect Obama has actually read the book, maybe even assigned it to his law students. If not, someone might put it on his Christmas list as he considers closing Guantanamo.

It was an article of faith among Democratic Party propagandists after the War, and conspiracy theorists down to this day, that the Lincoln Administration was characterized by "arbitrary arrests" of its civilian opponents in the Union states. Various writers claimed that between 13,000 and 38,000 prisoners were held without recourse to the writ of habeas corpus. Such figures would suggest a wholesale dampening of dissent that would make the Chicago Seven look like, well, just seven guys.

Neely, after examining arrest records in the National Archives, concluded that in fact, more than 13,000 civilians were held in military prisons during the War. He did not arrive at a maximum estimate – 38,000 may be too high – but "a whole bunch more" would be accurate enough.

But who were these people? Neely constructs an elaborate typology of "prisoners of state." They were sometimes called "political prisoners," to distinguish them from prisoners of war, but the term "political prisoner" is misleading. Some were Missouri bushwhackers who engaged in vandalism and robbery. Some were Confederate citizens, or sometimes escaped slaves and free blacks, caught on the wrong side of the lines. Some were grifters, big or small, caught defrauding the military; others were common criminals arrested in war zones. Some were blockade runners (though oddly enough, by international law, the crews of blockade runners technically committed no crime. Their ships and cargos were subject to civil forfeiture, but they were themselves supposed to go free – a loophole that didn't prevent the U.S. Navy from throwing many of them into irons anyway.)

Very, very few of the 13,000+ arrests were made for dissent. Early in the war, Maryland secessionists were rounded up. There were big-ticket cases like those of Clement Vallandigham, John Merryman, and Lambdin P. Milligan, all three of them pretty egregious fifth-columnists. The latter two lent their names to famous Supreme Court decisions. Almost all the fuss about Lincoln's contempt for the Constitution comes from these three cases, in fact, where military commissions tried and sentenced civilian dissenters.

Ex parte Milligan, in particular, is a powerhouse in the Court's annals, a resounding decision that guarantees the right to civil trials in places where civilian courts are functioning. Or does it? Neely tours through post-Civil-War history to show that Ex parte Milligan has had barely any effect on Presidents or Congresses determined to deprive American citizens of their rights during wartime. Woodrow Wilson and the World War I Congress flouted the spirit of Milligan. FDR went a step further with the groundless internment of Japanese-Americans. By contrast, the post-9/11 use of "extraordinary rendition" against al-Qaeda suspects (Neely wrote at the time of the first Gulf War, before the elaboration of this doctrine) seems to exist in a rather grey area. Milligan would suggest that suspected terrorists should get civil trials, if they violated American civil law. But jurisdiction there is legitimately hard to determine, as President Obama may find. And very probably, even if President Obama alleviates the abuses of "arbitrary arrest" at Guantanamo, he will not care much more about Ex parte Milligan than President Bush did. Expediency will rule.

Neely's thesis is that expediency certainly ruled the actions of Abraham Lincoln.

Lincoln was neither an intellectual nor a systematic political thinker. . . . He changed his mind from time to time and . . . he did not characteristically reach first for a copy of the U.S. Constitution when confronted with a social or political problem. (215)
Historians like Allen Guelzo and Garry Wills who see Lincoln as a keen intellectual probably cringe at Neely's bluntness. But Neely documents his contentions with thorough readings of Lincoln's state papers. Lincoln cared as much about habeas corpus as his opponents did. In fact, he had defended the writ against the long-ago military abuses of it by his predecessor Andrew Jackson. But in the summer of 1862, when dissenters threatened to undermine conscription drives, Lincoln was adamant: "Must I shoot a simple-minded soldier boy who deserts, while I must not touch the hair of a wily agitator who induces him to desert?" The Constitution might imply "yes," given that the civilian has not taken a military oath that exposes him to military punishment. Thoreau and Eugene C. Debs and Abbie Hoffman might say yes. Lincoln said no, and in saying no he was the Lincoln of sober reality, not the Lincoln of legend. We might admire him all the more as a real person.

Neely, Mark E., jr. The Fate of Liberty: Abraham Lincoln and civil liberties. New York: Oxford University Press, 1991.