In a previous question I made the statement that Lincoln "usurped" his war powers during the civil war. This statement was controversial and elicited thoughtful comments. I thought I would open up a new question to ask, Did Lincoln "usurp" his war powers? Did he use the military to take these powers and maintain these powers from the checks and balances built into the Constitution by use of the Military?
Here is my research.
What does usurp mean
Merriam Webster's Definition of Usurp - to seize and hold (office, place, functions, powers, etc.) in possession by force or without right.
Background - Extraordinary Times
The previous government of President James Buchanan was frozen in the face of insurrection. Before Lincoln James Buchanan believed the union had no legal right to stop succession and even publicly sided with the Southern secessionists in an address to Congress.
Buchanan denied the legal right of states to secede but held that the federal government legally could not prevent them. He placed the blame for the crisis solely on "intemperate interference of the Northern people with the question of slavery in the Southern States", and suggested that if they did not "repeal their unconstitutional and obnoxious enactments ... the injured States, after having first used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.
Buchanan's administration was rife with southern sympathizers.
The James Buchanan's secretary of war John B. Floyd, was a former Governor of Virginia, and future Confederate General, who used his time as the Nation's Secretary of War to prepare the South for secession. Floyd transferred arms to southern armories in order to facilitate their capture and use by the south.
The Memoirs of General Ulysses S. Grant:
chaptrer XVI: The Coming Crisis
Meanwhile the Administration of President Buchanan looked helplessly on and proclaimed that the general government had no power to interfere; that the Nation had no power to save its own life. Mr. Buchanan had in his cabinet two members at least, who were as earnest—to use a mild term—in the cause of secession as Mr. Davis or any Southern statesman. One of them, Floyd, the Secretary of War, scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them. The navy was scattered in like manner. The President did not prevent his cabinet preparing for war upon their government, either by destroying its resources or storing them in the South until a de facto government was established with Jefferson Davis as its President, and Montgomery, Alabama, as the Capital. The secessionists had then to leave the cabinet. In their own estimation they were aliens in the country which had given them birth. Loyal men were put into their places. Treason in the executive branch of the government was estopped. But the harm had already been done. The stable door was locked after the horse had been stolen.
Between the time President Lincoln is elected and he takes office the first seven states seced.
Lincoln is elected November 6, 1860
1 South Carolina: December 20, 1860 2 Mississippi: January 9, 1861 3 Florida: January 10, 1861 4 Alabama: January 11, 1861 5 Georgia: January 19, 1861 6 Louisiana: January 26, 1861 7 Texas: February 1, 1861
Lincoln takes oath of office March 4, 1861 Battle of Fort Sumpter April 11, 1861 John Merryman is arrested in Md May 25, 1861 Constitutional Crisis between Lincoln and Supreme Court May 28, 1861
What Powers are we calling Lincoln's War Powers?
( removed Right to Declare war, as Lincoln was arguable empowered to call up State Militia's to put down insurrections by the Militia Act of 1795 see page 163 )
- the right to borrow, budget and spend money without Congressional Approval
- to ignore the judiciary including the Supreme Court
- suspension of freedom of speech in boarder states (Maryland)
- suspension of freedom of press in boarder states (Maryland)
- the imprisonment of rebel sympathizers
- the imprisonment of northern dissidents
banish / deport citizens over speech offenses
Civil Liberties in Crisis
Public affirmation of the Confederacy and its leaders could lead to arrest. After William Kelley toasted Jefferson Davis, he was arrested for “treasonable language,” while Richard Warner, of Liberty, met the same fate for giving a cheer for the president of the Confederacy. Three young ladies were arrested in Frederick for singing secessionist songs. Thomas John Claggett, also of Frederick, was arrested and imprisoned for singing “Dixie.”
Military arresting enough of Maryland's legislature that neither the Md House nor Senate could form a quorum to debate sucession.
Civil Liberties in Crisis
By the time the (Maryland) Legislature reconvened in September, with many of its members arrested and troops from Wisconsin stationed in the city, neither the House of Delegate nor the Senate could assemble a quorum. No further debate occurred on the issue of secession. Efforts to secede thus ended in the city of Frederick, successfully subverted and silenced by the Lincoln administration.
the suspension of habeas corpus
- the use of military tribunals instead civilan courts to try civilians
- the confiscation of rebels' property
- the emancipation of the slaves
What does the Constitution Say
The Constitution splits the responsibility for war: Article I, gives Congress the power to:
- declare war
- to authorize an army and a navy,
- to supervise the state militias
- to "provide for calling out those militias
Article II gives the President the responsibility to using those forces.
The Constitution doesn't mention "War Powers" at all.
Lincoln's use of Military Power to enforce his War Powers
In the United States Constitution, Article 1, Section 9, of the Constitution states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Habeas Corpus origins go back to the signing of the Magna Carta in England in 1215 and compels the government to show cause to a judge for the arrest or detention of a person.
On May 25, 1861, federal troops arrested a Maryland plantation owner, John Merryman, on suspicion that he was involved in a secessionist group. Mr. Merryman was not given a trial, no courts warrant was issued for his arrest, and he confronted no witnesses against him. On May 27, 1861 the Chief Justice of the Supreme Court Roger Taney issued a writ of habeas corpus for John Merryman, ordering General George Cadwalader, Fort McHenry’s commander to produce Merryman and explain to the court why the man is being held without a warrent.
General Cadwalader did not comply with Justice Taney's writ, did not appear in court, but instead sent a letter back to Jutice Taney explaining President Lincoln had authorized the military officers to suspend the writ in order to facility public safety. Justice Taney then finds Cadwalader in contempt of court, but the solders at Fort McHenry refused to accept the notice.
Lincoln and Tanners great writ showdown
On May 28, Taney issued an oral opinion, which was followed by a written opinion a few days later. He stated that the Constitution clearly intended for Congress, and not the President, to have to power to suspend the writ during emergencies.
“The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department,” Taney argued.
Justice Taney finding is also ignored, to which Taney writes...
Lincoln and Tanners great writ showdown
“I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome,”
Precedent of War Powers in the United States before Lincoln
War Powers is an ancient concept. The Roman Lucius Quinctius Cincinnatus in a time when Rome was a Republic, was granted Emperor Powers and Authority to deal with a marshal crisis. Cincunnatus was very influential with George Washington who envisioned himself from the same mold. Washington even named the society of Revolutionary War officers which he founded the society of Cincunatus.
Washington as Cincinnatus
Depictions of Washington as Cincinnatus abounded in the Revolutionary and Early Republican periods. Philip Freneau evoked Cincinnatus in a poem written on the occasion of Washington's resignation in December 1783. Remarking on Washington's decision to return to retirement at Mount Vernon, Freneau wrote: "Thus He, whom Rome's proud legions sway'd/Beturn'd, and sought his sylvan shade."5 Thirty years later, in his "Ode to Napoleon," Lord Byron eulogized Washington as "the Cincinnatus of the West."6 In one of the most famous contemporary images of Washington, Jean-Antoine Houdon's statue (1785-1791) in the rotunda of the state capitol in Richmond, Virginia, the retired general is portrayed in civilian dress as "a modern Cincinnatus," standing in front of his plow.7
Abraham Lincoln a man of Ideas page 195 President Lincoln's Secretary of State Charles Sumner argued that
the war power of the President is above the Constitution, because, when set in motion, it knows no other law. ... The civil power, in mass and in detail, is superseded, and all rights are held subordinate to this military magistracy. All other agencies, small and great, executive, legislative, and even judicial, are absorbed in this transcendent triune power, which, for the time, declares its absolute will, while it holds alike the scales of justice and the sword of the executioner.
Only there is no mention of "War Powers" for the executive written into the Constitution.
Lincoln justified his assuming his special War Powers on the grounds of his Oath of Office. His Presidential Oath calls for hims to "preserve, protect and defend the Constitution of the United States", and that was his justification.
By conferring on the President the title of "commander in chief," the Constitution created an awkward and unde ned area of presidential prerogative. e rst President to have to confront this ambiguity was Abraham Lincoln, who developed a presidential "war powers" doctrine based on his presidential oath, the Constitution's "republican guarantee," and the necessity imposed by the novelty of a civil war. is doctrine was seriously contested in Lincoln's time by both Congress and the judiciary, and it continues to be an unresolved constitutional question in the present. But Lincoln's use of such war powers is one demonstration of how a doctrine aimed at awarding the President unilateral powers to override civil liberties safeguards need not create a lethal threat to democratic and constitutional government.
More Modern War Powers
War Powers while first pioneered by Abraham Lincoln as an American manifestation has been assumed by subsequent Presidents. They were also the name of a Congressional act passed into law in the 1973's (War Powers Resolution) which overcame a Presidential Veto, and tried to check the President from committing Forces to War without a Congressional declaration. That law has been violated by subsequent presidents, and those violations have never been prosecuted. War Powers remain a controversial subject today.
Modern Use of War Powers
- Presidents Wilson and Roosevelt's seizures of German property during both world wars
- President Roosevelt's detention of the Nisei in 1942
- President Truman's nationalization of the steel industry
- Presidents Kennedy, Johnson, and Nixon and the Vietnam War
- President Jimmy Carter's failed Iranian hostage rescue
- President Ronald Reagan's committing US Marines to Lebanon
- President Ronald Reagan's invasion of Grenada
- President Bill Clinton in 1999, during the bombing campaign in Kosovo.
- President George W Bush's use of Guantanamo Bay as a prison camp
- President Barak Obama's use of Military Force in Syria
- Merriam Webster's Dictionary: Usurp
- Lincoln's War Powers: Part Constitution, Part Trust
- John B. Floyd, President Buchanan's Sec of War
- Wikipedia: John B. Floyd
- Society of the Cincinnatus
- The Memoirs of General Ulysses S. Grant
- War Powers Resolution
- Lincoln and Tanners great writ showdown
- Abraham Lincoln and the Development of the " War Powers" of the Presidency
- Civil Liberties in Crisis
- Abraham Lincoln a man of Ideas
- Obama's move in Syria reignites war powers debate
Mark C. Wallace Just curious. "Usurp" is not a neutral word, and is also a transitive verb.
To my mind "usurp" is descriptive of the events as they occurred and not negative. To my mind what makes the question interesting is the fact that the founding fathers WERE paranoid of instilling in the Presidency dictatorial Powers. Paranoid the Presidency would become a de-facto monarchy. It was one of their most consistent fears and why in the original Articles of Confederation there was no office of the President. Dictator was also the charge continuously made against George Washington by Thomas Jefferson and his supporters. That Lincoln did so much that the founding fathers were most afraid of, and did it in defense of the constitution makes this question interesting. That Lincoln took these actions, unilaterally and "cloaked himself in immense power", at a time when the nation needed such a leader bold enough to take such actions, to my mind saved the union. Perhaps negative if you were one of the founding fathers who was debating "war powers" hypothetically in 1790. Perhaps negative if you were a contemporary of Lincoln's in 1862. But certainly this is one of the reasons Abraham Lincoln goes down in history as one of the greatest American Presidents. Literally cloaking himself in immense power to save the union.
Mark C. Wallace From whom are the powers usurped?
The rights usurped from Congress
- to suspend habeas corpus
- to declare war
- the right to borrow, budget and spend money
The rights usurped from the Supreme Court
- to check Presidential Power and ensure constitutionality of Federal action was usurped
The right to legislate at the state of Maryland level was usurped from the Maryland Legislature. The rights to freely assemble, free speech and free press were usurped from the citizens who were arrested and or deported for exercising those rights.
Mark C. Wallace How would the question change if it asked whether Lincoln "created" his war powers? –
If Lincoln had merely created these war powers perhaps he would still go down a great president. But that he usurped them in the service of protecting the constitution, stood for re-election in 1864 and allowed the people to judge his actions, and was ultimately successful at preserving the union; are all what set Lincoln apart as one of the greatest.