Crisis and Command: A History of Executive Power from George Washington to George W. Bush (29 page)

Even though the treaty did not recognize even broader American gains, it cemented Polk's place among the nation's greatest Presidents. Polk secured Texas and added the land between the Louisiana Purchase and the Pacific Ocean to the United States. He increased the size of the nation more than any President before or since. While these lands had been sparsely settled under their previous owners, they would someday rank among the more populous and dynamic states in the Union. Polk's vision gave the United States a continent-wide breadth, and it neutralized any natural enemies along the northern or southern borders. With the addition of California and the Northwest, the United States would be protected on both flanks by wide oceans, and by the end of the century it would become a great power. The expansion of the United States was anything but inevitable, propaganda for "Manifest Destiny" notwithstanding. Polk pursued a high-risk strategy that prevailed thanks to Mexico's military weakness and the superior fighting abilities of the U.S. armed forces.
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A President with a modest view of his constitutional powers would have shrunk from provoking war over the Texas border, not to mention invading Mexico. Only by fully exercising the powers of the Presidency, as laid down by Jackson, could Polk have realized his dream of reaching the Pacific. Lincoln and other Whigs criticized Polk's exercise of his constitutional rights, just as future Congresses would challenge Presidents who claimed the authority to take the nation into war. And they had much to complain of. As Commander-in-Chief, Polk manipulated events to produce a war, maneuvered Congress into funding it, and held sole control over its goals and strategies. In the words of the leading historian of the period, Daniel Howe, Polk "probably did as much as anyone to expand the powers of the Presidency -- certainly at least as much as Jackson, who is more remembered for doing it." Overcoming the errors of Madison's ways, the vigor and energy of his leadership set the model for other Presidents in wartime. Polk's success was inextricably intertwined with the Jacksonian understanding of a constitutionally energetic executive, and it worked to the nation's incalculable benefit.
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CHAPTER 6
Abraham Lincoln

NO ONE STANDS HIGHER in our nation's pantheon than Abraham Lincoln. Washington founded the nation -- Lincoln saved it. Without him, the United States might have lost 11 of its 36 states, and 10 of its 30 million people. He freed the slaves, ended the planter society, and ushered in a dynamic political system and market economy throughout the nation. Building on Jackson's arguments against nullification, he interpreted the Constitution as serving a single nation, rather than existing to protect slavery. The Civil War transformed the United States from a plural word into a singular noun. That nation no longer withheld citizenship because of race, and guaranteed to all men the right to vote and to the equal protection of the laws. Where once the Constitution was seen as a limit on effective government, Lincoln transformed it into a charter that empowered popular democracy.

Part of Lincoln's greatness stems from his confrontation of tragic choices. As he famously wrote in 1864, "I claim not to have controlled events, but confess plainly that events have controlled me."
1
He did not seek the war, but understood that there were worse things than war. Victory over the South came at an enormous cost to the nation. About 600,000 Americans lost their lives out of a population of 31 million -- about equal to American battle deaths in all of its other wars combined. One-quarter of the South's white male population of military age were killed or injured. While the total value of Northern wealth rose 50 percent during the 1860s, Southern wealth declined by 60 percent.
2

The human cost weighed heavily upon Lincoln, but it was necessary to atone for the wrong of slavery. "Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away," Lincoln wrote in his Second Inaugural Address. "Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword," he continued, "as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'"
3
One of the lives lost would be Lincoln's -- the first President to be assassinated.

Lincoln's greatness is inextricably linked to his broad vision of presidential power. He invoked his authority as Commander-in-Chief and Chief Executive to conduct war, initially without congressional permission, when many were unsure whether secession meant war. He considered the entire South the field of battle, and read his powers to attack anything that helped the Confederate war effort. While he depended on congressional support for the men and material to win the conflict, Lincoln made critical decisions on tactics, strategy, and policy without input from the legislature. The most controversial was the Emancipation Proclamation. Only Lincoln's broad interpretation of his Commander-in-Chief authority made that sweeping step of freeing the slaves possible.

Some have argued that part of Lincoln's tragedy is that he had to exercise unconstitutional powers in order to save the Union. In their classic studies of the Presidency, Arthur M. Schlesinger called Lincoln a "despot," and both Edward Corwin and Clinton Rossiter considered Lincoln to have assumed a "dictatorship."
4
These views echo arguments made during the Civil War itself, even by Republicans who believed that the Constitution could not address such an unprecedented conflict. Lincoln surely claimed that he could draw on power beyond the Constitution in order to preserve the nation. As he wrote to a Kentucky newspaper editor in 1864, "Was it possible to lose the nation, and yet preserve the Constitution?" To Lincoln, common sense supplied the answer: "By general law life and limb 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." Necessity could justify unconstitutional acts. "I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation."
5

Lincoln, however, was no dictator. While he used his powers more broadly than any previous President, he was responding to a crisis that threatened the very life of the nation. He flirted with the idea of a Lockean prerogative, but his actions drew upon the same mix of executive authorities that had supported Washington, Jefferson, and Jackson. He relied on his power as Commander-in-Chief to give him control over decisions ranging from tactics and strategy to Reconstruction policy. Like his predecessors, Lincoln interpreted his constitutional duty to execute the laws, his role as Chief Executive, and his presidential oath as grants of power to use force, if necessary, against those who opposed the authority of the United States. Lincoln understood "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."
6
It seems clear that Lincoln believed that the Constitution vested him with sufficient authority to handle secession and Civil War without the need to resort to Jefferson's prerogative.

Lincoln refused to believe that the Constitution withheld the power for its own self-preservation. Rather than seek a greater power outside the law to protect the nation, he found it in the Chief Executive Clause. That gave Lincoln the authority to decide that secession justified military coercion, and the wide range of measures he took in response: raising an army, invasion and blockade of the South, military government of captured territory, suspension of the writ of habeas corpus, and tough internal security measures. Lincoln consistently maintained that he had not sought the prerogative, but that the Constitution gave him unique war powers to respond to the threat to the nation's security. Lincoln's political rhetoric invoked Jefferson, but his constitutional logic followed Hamilton.

Perhaps the most important defense to the charge of dictatorship is that the normal political process operated in the North throughout the war. An opposition party continued to challenge Lincoln's wartime policies, and regular elections were held in the states and national governments, with the crucial 1864 election giving voters a choice between more of Lincoln's war or a cessation of hostilities. While the administration took vigorous, sometimes extreme, steps to prevent assistance to the Confederacy from behind the lines, it refused to interfere with the normal workings of politics at home. Full-throated competition for elections and debate over the war continued between Republicans and Democrats, to the point where Lincoln worried that he would have to hand over the Presidency to his opponent, retired General George McClellan.

Throughout the war, the institutions of government kept their characteristic features. Congress controlled the power of the purse and initiated most domestic policies, such as the Homestead Act, a protective tariff, land grant colleges, and subsidies for railroad construction. Lincoln followed a hands-off approach on domestic priorities and disclaimed any right to veto laws because of disagreements on policy. He rarely interfered with legislation, often consulted with members of Congress in making important appointments, and displayed little interest in the work of agencies with domestic responsibilities.
7
He was profoundly aware that members of Congress and his cabinet enjoyed many more years of public service and experience than he. Initially, he spoke in the language of deference to Congress and sought its ex post approval of his actions at the start of the war.

Nonetheless, Lincoln was not reluctant to disturb relations with the other branches of government in pursuit of his war aims. From the very beginning, he had set the stage to make it difficult, if not impossible, for Congress to reverse his initial military decisions. He excluded Congress from important war policies and vetoed early congressional efforts to dictate the course of Reconstruction. But Lincoln could not rule out all congressional participation in the war. Congress's cooperation was critical to any sustained war effort, for it alone controlled taxing and spending, the size and shape of the military, economic mobilization, and the regulation of domestic society. Lincoln did not refuse to obey any congressional laws, but he maintained his independent right to act in areas of executive competence, such as the management of the war, and to act concurrently with Congress in areas that might usually be thought to rest within the legislature's purview. Lincoln, not Congress, decided the goals of the war, the terms of the peace, and the means to win both.

Lincoln's attitude toward the judiciary is even more at odds with today's conventional wisdom. He lost confidence in the courts after
Dred Scott v. Sanford
, which recognized slave ownership as a property right and made it unconstitutional for Congress to restrict slavery's spread in the territories.
8
Challenging the legitimacy of
Dred Scott
defined the young Republican Party. In his famous, losing debates with Stephen Douglas, Lincoln rose to national prominence by arguing that
Dred Scott
applied only to the parties in the case. In other words, the Supreme Court's decisions could not bind the President or Congress, who had the right to interpret the Constitution too, or most importantly, the people. "I do not deny that such decisions may be binding in any case, upon the parties to a suit, as to the object of that suit," Lincoln explained in his First Inaugural Address. Decisions of the Court should receive "very high respect and consideration in all parallel cases by all other departments of government." It might even be worth following erroneous decisions at times because the costs of reversing them might be high. But "if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Lincoln argued, "the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
9

Lincoln laid the foundations of his Presidency on a vigorous and dynamic view of his right to advance an alternative vision of the Constitution. If Lincoln and the Republican Party had accepted the supremacy of the judiciary's interpretation of the Constitution,
Dred Scott
would have foreclosed their core position that the federal government should stop the spread of slavery. Likewise, Lincoln's Presidency could not have achieved its successes without a proactive exercise of his constitutional powers. A passive attitude that conceded to Congress the leading role in setting policy, or one that waited on the Supreme Court to decide matters, would have led to a sundered nation or military disaster. Lincoln became America's savior because he preserved the Union, freed the slaves, and launched a new birth of freedom. He set in motion a political, social, and economic revolution, but one that had the conservative goal of restoring the nation's constitutional system of government. He could have achieved none of this without a broad vision of his office.