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<\/a>Lincoln’s “Blind Memorandum,” Aug. 23, 1864 (Courtesy of Library of Congress)<\/p><\/div>\n
Historical Background<\/strong><\/p>\n Just about a decade after the ratification of the Constitution, the nation entered a period of assault on fundamental civil liberties which Thomas Jefferson himself labeled a “reign of witches.” \u00a0The controversy involved a partisan battle between Federalists and Republicans over national security policy. \u00a0In 1798, the US Congress adopted a series of measures known as the Alien & Sedition Acts, designed to help secure the homeland against what seemed like an impending war with France, a former American ally. \u00a0Jefferson was vice president of the United States at that time, but he was a Democratic-Republican serving in a Federalist administration and felt that his political movement was being targeted for suppression. \u00a0The Republicans waged the 1800 election\u00a0contests partly on this basis and thus felt vindicated by their subsequent victories, especially Jefferson’s selection as president in 1801. \u00a0It was a messy and divisive period, but one that established an American precedent of attempting to resolve conflicts over wartime civil liberties through a vigorous\u00a0election process.<\/p>\n Lincoln’s Example<\/strong><\/p>\n For critics of excessive presidential power, Lincoln offers an example of the potential for executive abuse of civil liberties. \u00a0Article I, Section 9 of the US Constitution forbids the suspension of\u00a0habeas corpus<\/em>\u00a0(the “Great Writ” as it was known) except “when in Cases of Rebellion or Invasion the public Safety may require it.” \u00a0This protection of a fundamental civil liberty (the right to a judicial process when facing arrest) was one of the very few liberties written into the original 1787 constitutional text. \u00a0It obviously held a sacred place among the Founders. \u00a0Yet Lincoln appeared to defy the Chief Justice of the United States (Roger Brooke Taney) and act in advance of the Congress when he suspended habeas corpus<\/em>\u00a0in Maryland and elsewhere in April and May 1861 at the outset of the Civil War. \u00a0Later in the conflict, Lincoln and his military commanders authorized preventative arrests against thousands of individuals and the suspension of dozens of anti-war newspapers. \u00a0President Lincoln appeared to take a particularly hard line against opponents of the federal draft, arguing in somewhat chilling terms, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?” \u00a0The result of this attitude and the Lincoln Administration’s controversial wartime policy on civil liberties was an outcry from the president’s political opponents in the North.<\/p>\n In fact, to a remarkable degree and in a way that recalled the bitterness of 1800, the reelection of Abraham Lincoln in 1864 was a contest about civil liberties and executive tyranny. Lincoln allowed his wartime critics to challenge him on this basis, a remarkable example in retrospect of his underlying belief in the election process. \u00a0 In fact, anyone who doubts Lincoln\u2019s underlying restraint as a wartime executive should look no further than August 1864. This was the moment when Lincoln contemplated the real possibility of his defeat for reelection, yet decided to plough ahead anyway. \u201cThis morning, as for some days past,\u201d he wrote in a secret memorandum on August 23, 1864, \u201cit seems exceedingly probable that this Administration will not be re-elected.\u201d Yet Lincoln\u2019s solution to this dilemma was not to change his unpopular policies (such as emancipation), step aside as his party\u2019s nominee (as he was being pressed very hard to do) or, most notably, to cancel or ignore the elections. Instead, Lincoln vowed to honor the results, whatever they were, and to pledge to work with his opponent in a kind of coalition government during what was then the long transition period between November election and March 1865 inauguration.<\/p>\n If that commitment to the electoral process sounds unexceptional, just recall every other bold executive action that Lincoln had already undertaken. President Lincoln believed that there could be free government without civil liberties, or full property rights, but not without elections, which he deemed a special \u201cnecessity\u201d on November 10, 1864. Why? The answer lies with his deep, abiding sense of popular sovereignty. \u201cPublic sentiment is everything,\u201d he had said during the Lincoln-Douglas Debates of 1858, \u201cWith public sentiment, nothing can fail; without it, nothing can succeed.\u201d This faith in people to settle the great questions of their nation also represented a final bulwark in the containment of executive usurpation. A president elected by the people and subject to their reelection, according to the Lincolnian view, was not, and could never be, a tyrant. More important, a people who truly governed themselves could never be slaves.<\/p>\n Modern Debates<\/strong><\/p>\n In July 2014, a panel of leading journalists convened at the New America Foundation in Washington DC to discuss ways that the wartime press has evolved since Lincoln’s era. \u00a0Dr. Jeffrey McCausland (Dickinson College and Strategic Studies Institute at the US Army War College) served as panel moderator and Matthew Pinsker (instructor, Understanding Lincoln online course) joined the session, which involved a lively exchange with Kimberly Dozier (The Daily Beast),\u00a0<\/em>Linda Mason (CBS) and\u00a0Thom Shanker (New York Times<\/em>). \u00a0For more information on the panelists, see this press release<\/a>. C-SPAN also televised this session and provided a transcript here<\/a>.<\/p>\n The event produced several lively exchanges over the nature and potential limits of press freedom during periods of wartime or when national security matters are at stake. \u00a0The panelists considered how respect for the freedom of press has grown since Lincoln’s era, but nonetheless remains in jeopardy at times because of the perennial\u00a0concerns over leaks. \u00a0These topics are controversial and the discussion generated both probing questions from the course participants and also some reasonably fierce pushback later from the blogosphere. \u00a0This reaction came in large measure because of the following story which appeared in Time magazine online<\/a>.<\/p>\n\n
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