What were the debates over President Lincoln’s use of presidential power during the Civil War?

0:05Sometimes Lincoln's constitutional vision is criticized on a number of grounds. Sometimes those grounds have to do with civil liberties, because in the midst of a Civil War, one of the first things that gets trampled are civil liberties. When you're in the midst of any wartime environment, and this has been true in American history from the Revolution all the way up most recently to the Iraq War. There have been significant degrees of unwillingness on the part of many Americans, on the part of administrations to tolerate the free expression that we think is a normal procedure in peacetime. The argument is that dissension threatens our unity without unity, how can we possibly have victory in war? Well, this is an argument that was made in the Revolution. It's made in the Civil War, and it's made in subsequent American wars. There was traveling on civil liberties during the Civil War. The Lincoln administration has to bear some responsibility for that.

1:13One of the most obvious examples was the suspension of the writ of habeas corpus. There was also this issue, particular issue about what was to be done about slavery because strictly speaking, Lincoln as president has no authority to deal with slavery. Whether it's in the Southern states or in the four border states of Delaware, Maryland, Kentucky, and Missouri that remain part of the union and do not join the confederacy. What was to be done about slavery there?

1:43The answer is, we don't know if we have any authority to do anything on the federal level about slavery in the states because slavery had, from the very beginning, always been a state institution. There was no federal slave code. There was no federal legislation legalizing slavery. It didn't exist. It didn't exist on the federal level. The understanding was that there is a firewall, if you will, between state jurisdictions and federal jurisdictions.

2:11Can Lincoln as president reach over that firewall and try to deal with slavery? Maybe slavery just on the four border states, but slavery in any of the states. Does he have the authority to do that? The general answer was, no, he doesn't. At least not under the usual constitutional operations. For at least two years into the war, Lincoln tries to work his way around that firewall because Lincoln understands that although this is a war officially for the preservation of the union, he also understands that there's really no point in preserving the union if all you're going to do is leave slavery untouched. Slavery has been a threat to the life of the Union for decades. Who would fight in this war and then bring it to a conclusion without dealing with

3:06the weed which is poisoning the garden in the first place? But how to deal with that? Does he have the jurisdiction? The answer is, we don't think so. Two years into the war, Lincoln has tried everything he could to work his way around the firewall. He offers, for instance, a buyout plan to the state of Delaware. Now, when we think of Delaware, we tend to think of it as being a northern state.

3:30Well, it actually was a slave state. In 1861 and 1862, slavery was legal there. There were only about 1,700 slaves in Delaware, but it was still legal. How is Lincoln go to deal with that? What do he offers to do is to buy them all. The federal government will provide the state of Delaware with United States bonds, which the Delaware Legislature will then turn around cash and then use the cash to buy all slaves from slave owners in Delaware, and thereby emancipate them. Doesn't work. The state legislatures will not go along with it. Finally, by the middle of 1862, he's run out of options. What he resorts to is a constitutionally risky idea for him. We're in the middle of a war, he says. In the middle of a war, the Constitution makes the President

4:23the commander in chief of the armed forces. Well, as commander in chief, the assumption has to be that I have certain authority to do certain things that are good war measures for winning the war. One of the best things I could do to move us towards winning this war is to emancipate the slaves. As a war measure, as my, so to speak, war powers, as Commander in Chief, I am going to issue an emancipation proclamation. He issues that preliminary proclamation in September of 1862, issues the final proclamation to make it law on January 1st,1863. Now, people look at that and say, well, up until 1862, Lincoln was only interested in preserving the Union but after 1862, he's interested in getting rid of slavery.

5:14I'm thinking, no. It's not quite so binary. Lincoln wanted to get rid of slavery from the first. But he had to find a constitutional way of doing it. It takes him until 1863 to finally land on that new method, the method of appealing to the war powers. He understood that preserving the Union and getting rid of slavery were two sides of the same coin.

5:42There was no point in preserving the Union, if it was a Union that was going to continue slavery. Because slavery but sooner or later break the Union up again. But at the same time, you can't get rid of slavery until you preserve the Union because if you're not successful in preserving the Union, if the Confederate states are successful in achieving their independence, they're going to be a separate nation. One nation doesn't make rules for other nations.

6:06If we want to get rid of slavery in America, we're going to have to preserve the Union because it's only within the Union that we're going to have the authority to do that thing. For Lincoln, abolishing slavery and saving the Union really go together. They work together. You can't have the one without the other. That is what really guides his thinking all the way through his presidency, right up to the very end when he is going to push as hard as a president can to get a 13th Amendment through Congress and out to the states.