Eric Foner on Presidential Powers

Question: Was Lincoln’s suspension of habeas corpus an abuse of executive power?

Foner:    Lincoln suspended the writ of habeas corpus a number of times during the Civil War.  And at first in 1861, he suspended it first along the railroad line between New York, Philadelphia and Washington because there were riots going on in Maryland, people trying to block troops coming down to protect Washington.  So, in a sense, at first, it was in a military district and, you know, it was part of a war, you know.  Later, the writ of habeas corpus is suspended for the whole country, and, certainly, there were abuses of civil liberties under Lincoln.  No questions about it.  People arrested who just for giving speeches criticizing the war.  There were newspapers temporarily suspended.  Now, we should not think that Lincoln was a dictator, a tyrant.  There was great criticism all through the war of him and the elections went on.  Nobody said let’s suspend the election because, you know, the war is on.  But, certainly, I think Lincoln established a dangerous precedent that the Constitution doesn’t really apply in war time.  And now, unlike our recent president, Lincoln directly addressed this question.  He went to Congress.  He said, “I may have stepped over the line here.  Here is my problem.  Here is my situation.  I was faced with this thing.  Do I abide by the law and let the whole country fall apart or do I violate this one law and therefore save the whole country?”  Well, that’s a difficult question to answer, you know, and there was no simple answer, but at least Lincoln put it on the agenda.  He said, “This is a serious problem.”  President Bush has never even admitted there’s any kind of problem.  He just [blithely] goes his own way acting as if there is no Constitution.  Now, the other thing is in the Civil War, the United States face the greatest crisis in its history and the greatest threat to its existence as a nation.  The attack of 9/11 was a tragic thing but it didn’t threaten the existence of the United States and there was no thought that Al Qaeda today is actually going to overthrow the government of the United States.  They can commit, you know, heinous acts but they are not going to take over the government.  I don’t think Osama Bin Laden will be president anytime soon.  So, we don’t face the kind of threat to our national existence that Lincoln faced.  On the other hand, history shows that almost any government conducting a war will find the Constitution an inconvenience and will try to get around it, and this has happened during World War I with the suppression of freedom of speech.  It happened in World War II with the internment of Japanese-Americans.  So, you know, what is the lesson?  It simply that we have to be very vigilant about our liberties and that, you know, to realize you can conduct a war and still respect civil liberties.

Question: Would Lincoln endorse Bush’s use of his executive mandate?

Foner:    Lincoln is saying and this is a Democratic view, if people think I have abused my power or I have not conducted the war properly or intelligently, they’ll vote me out of power.  That’s what democracy is.  It gives you a chance to [boot] the guys out.  And Lincoln ran for president, reelection in 1864, and even though he won a very large majority, we should not forget that in August, not long before the election, Lincoln and most politicians thought he was going to lose, that the war was at a stalemate.  There was a great deal of discontent.  Lincoln and the Republican Party thought he was going to lose.  In fact, there were people who came to him and said, “You’ve got to rescind the Emancipation Proclamation.”  People think that it is prolonging the war.  That if you tell the South come back and you can keep slavery, they’ll come back now.  But if you say come back and you’ve got to get rid of slavery, that is just making them fight longer.  So, rescind the Emancipation Proclamation.  Lincoln said, “I cannot do that, I would be damned in time and eternity,” or something like that.  In other words, you know, he wasn’t willing to do “anything that might be done to get reelected.”  The problem with Lincoln’s quote though is that in the midst of a war, it often is quite popular to trample on civil liberties.  You know, many of the things that President Bush has done that have popular support rounding up people with Muslim names, [chucking] them into jail with no charge, throwing away the key, holding people at Guantanamo.  You know, when people are frightened, they are willing to support serious infringements on other people’s civil liberties.  Civil liberties are not supposed to be subject to popular vote.  They are in the Constitution.  They are the protection of minorities.  The person who holds popular views, his freedom of speech is never in question.  It’s the person who is the [center] who has unpopular views.  So, you don’t put that up to unpopular vote to say, well, should this guy be able to give a speech criticizing the war.  A lot of people will say no, you shouldn’t.  So, you know, Lincoln’s view of democracy in a certain sense is right, but on the other hand, it doesn’t really reflect the fact that civil liberties are the protection of minorities against majorities, and, therefore, they can’t be just subjected to majority vote.

The author characterizes Lincoln as a president who was unafraid to


suspend some basic rights for the betterment of the union

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