Tom Sanford Looks at Lincoln and Executive Power

Tom Sanford. Washington and Lee. Blog Post #2

Abraham Lincoln, Thomas Jefferson and Necessity

 

My paper started with a focus on Abraham Lincoln and his understanding and use of presidential war powers.  I initially used a large portion of my paper to address Lincoln as Commander-in-Chief, which for much of the war also required him to be General-in-Chief. In this role Lincoln periodically tried to take the reins from his generals, but more importantly he developed and promoted two key Union military strategies – concentration in time, which he phrased as “those not skinning can hold a leg,” and focusing on the Confederate armies, not their cities. Since submitting the first draft of my paper, however, I have moved away from this narrower view of Lincoln to one focused on his definition of presidential war powers and the constitutional justifications he offers for their existence along with how he used those powers – spending money without congressional appropriations, blockading the South without a congressional declaration of war, increasing the size of the regular army without congressional legislation, suspending habeas corpus without congressional approval, and issuing the emancipation proclamation without congressional authorization.

This shift in focus has led me to two interesting discoveries about Lincoln’s theory of executive power. First, I found that Lincoln used the concept of necessity as the crux of his position on executive power. Reading through Harold Holzer’s Lincoln on War, a collection of Lincoln’s writings and speeches related to the war, the argument that a certain action was necessary or indispensable seemed to come up every other page. In six sentences of one letter to General Butler, Lincoln used the words necessary or necessity eleven times! Necessity appears 946 times in the Collected Works of Abraham Lincoln. Examining how Lincoln used the concept of necessity in many of these writings led me to the conclusion that Lincoln thought he could constitutionally act beyond his explicit constitutional powers so long as the action was necessary or indispensable to the preservation of the Union and the Constitution, which the president’s unique oath required him “to preserve, protect and defend.”

The second interesting conclusion I reached came from examining the precedents of executive power Lincoln had to work with, especially Thomas Jefferson’s view as expressed in a letter to John B. Colvin. Jeremy David Bailey’s article, “Executive Prerogative and the ‘Good Officer’ in Thomas Jefferson’s Letter to John B. Colvin,” was invaluable for me in understanding Jefferson’s views on executive prerogative and the key distinctions between Jefferson and Lincoln. It was quite interesting, however, to see one stark similarity between the two men – following the Chesapeake affair when a British war ship (the HMS Leopard) fired on an American navy vessel (the USS Chesapeake) and killed 3 Americans and wounded another 18, Jefferson banned armed British ships from U.S. waters, called on governors to ready their militia quotas, and appropriated money to purchase articles of war all without congressional authorization. He justified these measures as “indispensable” or as Lincoln would say necessary. 

I am looking forward to seeing everyone at the Spring Conference. 

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