{"id":1310,"date":"2013-02-22T16:07:03","date_gmt":"2013-02-22T16:07:03","guid":{"rendered":"http:\/\/housedivided.dickinson.edu\/sites\/emancipation\/?p=1310"},"modified":"2015-03-16T14:15:47","modified_gmt":"2015-03-16T14:15:47","slug":"lincoln-and-war-powers","status":"publish","type":"post","link":"https:\/\/housedivided.dickinson.edu\/sites\/emancipation\/2013\/02\/22\/lincoln-and-war-powers\/","title":{"rendered":"Lincoln and War Powers"},"content":{"rendered":"

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0GO TO \u201cLINCOLN\u201d MOVIE TEACHER\u2019S GUIDE<\/a><\/strong><\/b><\/strong><\/p>\n

INTRODUCTION<\/strong><\/p>\n

\"SceneEarly in the “Lincoln” movie (Scene 7<\/a>), President Lincoln provides a lengthy defense of his wartime emancipation policy to his Cabinet when he encounters some objections to the move toward abolition from Secretary of Interior John P. Usher. \u00a0Read the following excerpt closely and try to identify Lincoln’s key arguments:<\/p>\n

CLOSE READING ASSIGNMENT<\/strong><\/p>\n

LINCOLN:<\/p>\n

I decided that the Constitution gives me war powers, but no one
\nknows just exactly what those powers are. Some say they don\u2019t
\nexist. I don\u2019t know. I decided I needed them to exist to uphold my
\noath to protect the Constitution, which I decided meant that I could
\ntake the rebels\u2019 slaves from \u2018em as property confiscated in war. That
\nmight recommend to suspicion that I agree with the rebs that their
\nslaves are property in the first place. Of course I don\u2019t, never
\nhave, I\u2019m glad to see any man free, and if calling a man property, or
\nwar contraband, does the trick… Why I caught at the opportunity.<\/p>\n

Now here\u2019s where it gets truly slippery. I use the law allowing
\nfor the seizure of property in a war knowing it applies only to the
\nproperty of governments and citizens of belligerent nations.<\/p>\n

But the South ain\u2019t a nation, that\u2019s why I can\u2019t negotiate with
\n\u2019em. So if in fact the Negroes are\u00a0property according to law, have I
\nthe right to take the rebels\u2019 property from \u2018em, if I insist
\nthey\u2019re rebels only, and not citizens of a belligerent country?
\nAnd slipperier still: I maintain it ain\u2019t our actual Southern states in
\nrebellion, but only the rebels living in those states, the laws of
\nwhich states remain in force. The laws of which states remain in
\nforce. That means, that since it\u2019s states\u2019 laws that determine whether
\nNegroes can be sold as slaves, as property – the Federal government
\ndoesn\u2019t have a say in that, least not yet – (a glance at \u00a0Seward,
\nthen:)- then Negroes in those states are slaves, hence property, hence my
\nwar powers allow me to confiscate \u2018em as such. So I confiscated \u2018em.
\nBut if I\u2019m a respecter of states\u2019 laws, how then can I legally free
\n\u2018em with my Proclamation, as I done, unless I\u2019m cancelling states\u2019
\nlaws? I felt the war demanded it; my oath demanded it; I felt right
\nwith myself; and I hoped it was legal to do it, I\u2019m hoping still.<\/p>\n

(Tony Kushner, “Lincoln,” p. 26-7)<\/a><\/p>\n

 <\/p>\n

GUIDING QUESTIONS<\/strong><\/p>\n

After you have organized an outline or chart of Lincoln’s key arguments in this passage, try to answer the following questions:<\/p>\n

1. \u00a0In the context of the Civil War, what is the meaning of the following words or phrases: \u00a0war powers, confiscation, contraband, and belligerent? \u00a0Are there other words in the excerpt that need definition?<\/p>\n

2. \u00a0How does Lincoln describe the process which was leading him to conclude that only a constitutional amendment could truly end slavery in the United States?<\/p>\n

3. \u00a0Why was the problem of ending slavery during the Civil War so “slippery” as Lincoln describes it? \u00a0Were the obstacles that Lincoln is describing here mainly political, legal or social?<\/p>\n

SHORT WRITING ASSIGNMENT<\/strong><\/p>\n

The passage attributed to Lincoln in this script is not something he actually said, but has been imagined by the scriptwriter Tony Kushner to represent various arguments in favor of emancipation policy that President Lincoln and his supporters used during the course of the Civil War. \u00a0Consider the following real quotations from Abraham Lincoln and compose a short informational essay that tries to explain how the script seems to be summarizing aspects of these historical statements:<\/p>\n

Abraham Lincoln’s First Inaugural Address, March 4, 1861<\/em><\/p>\n

“Apprehension seems to exist among the people of the Southern States that by the accession of a Republican Administration their property and their peace and personal security are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that\u2014<\/p>\n

I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.<\/em><\/p><\/blockquote>\n

Abraham Lincoln’s Special Message to Congress, July 4, 1861<\/em><\/p>\n

“Lest there be some uneasiness in the minds of candid men as to what is to be the course of the Government towards the southern States\u00a0after<\/i>\u00a0the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever, to be guided by the Constitution and the laws; and that he probably will have no different understanding of the powers and duties of the Federal Government relative to the rights of the States and the people, under the Constitution than that expressed in the inaugural address.”<\/p>\n

Abraham Lincoln to James C. Conkling, August 26, 1863<\/em><\/p>\n

“I think the constitution invests its Commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there–has there ever been–any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy?” \u00a0\u00a0<\/b><\/p>\n

Abraham Lincoln to Albert Hodges, April 4, 1864<\/em><\/p>\n

“I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life\u00a0and\u00a0limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.”<\/p>\n

ANOTHER VIEW<\/strong><\/p>\n

From Matthew Pinsker, Director, House Divided Project:<\/em><\/p>\n

Not every historian would accept the way Tony Kushner conveys Lincoln’s views. \u00a0One of the biggest arguments concerns this question of “confiscating” slaves as property in order to free them. \u00a0According to the script, Lincoln denies that slaves should ever be considered as property but admits that he “caught at the opportunity” in order to set in motion his emancipation policy. \u00a0 On the surface, this appears to be what he wrote to Conkling in 1863 (“The most that can be said, if so much, is, that slaves are property,”) but a careful reading of that document –especially in context– suggests that was not what he believed or what he actually did –but rather he was saying this was what even his political enemies had to concede if that was truly their belief (“The most<\/em> that can be said…”).<\/p>\n

What the script does not quite have the space to explain is that “confiscation” was a congressional policy, created in two separate laws (August 6, 1861 and July 17, 1862) that ultimately authorized the president to make rebel-owned slaves “forever free.” \u00a0This was the real trigger for Lincoln’s initial emancipation decision in July 1862. However, congressional confiscation made a careful distinction between punishing rebels by confiscating their real property (such as their plantations) and by freeing their slaves. \u00a0The confiscation law treated these enslaved people not as property but explicitly as “captives of war.” \u00a0In other words, federal law never recognized the principle of property in man. \u00a0Only states laws did that. \u00a0This is a critical insight made clear in James Oakes’s book,\u00a0Freedom National\u00a0<\/em>(2012) <\/a>and which is documented here<\/a>\u00a0in this Emancipation Digital Classroom. \u00a0 This also helps explain why the Emancipation Proclamation<\/a> refers to “persons held as slaves,” and does nothing to recognize them as property or to invoke asset forfeiture law in order to “seize” them. \u00a0Instead, the proclamation calls their freedom “an act of justice,” and addresses them directly as people with natural rights. \u00a0See this video<\/a> from Matthew Pinsker for a more complete explanation of that point.<\/p>\n

The script also appears to make a mistake by having Lincoln assert that the laws of the states in rebellion remained “in force.” \u00a0This was never his view. \u00a0In fact, almost all of the extraordinary presidential measures he embraced from the beginning of the war until its conclusion –whether it was calling forth the militias, suspending\u00a0habeas corpus,\u00a0<\/em>emancipating slaves, or setting conditions for reconstruction– were done in the name of substituting executive action for laws that were clearly not in force. \u00a0When President Lincoln invoked the international “laws of war” as Commander-in-Chief, he was able to do so to suppress a domestic rebellion. \u00a0Some measures –such as setting foot a blockade– did suggest implicit recognition of Confederate sovereignty– but even as Lincoln was denying that sovereignty in public, he was never claiming to be bound by southern state laws during a time of armed rebellion. \u00a0According to Lincoln, Confederate states were neither independent of nor controlled by the federal government during the Civil War. \u00a0They were quite literally “in rebellion” and subject to the laws of war.<\/p>\n

DISCUSSION QUESTIONS<\/strong><\/p>\n

What do you think about these sometimes highly technical arguments over the Constitution and international law during times of war? \u00a0Do they sound like unnecessary legal hair-splitting? Or does the depth and complexity of this debate reflect the enduring importance of constitutional law in American history?<\/p>\n

Common Core Alignments<\/strong><\/p>\n

Grades 6-8<\/em><\/p>\n