"Another time like that"

November 19, 1863, Gettysburgh Pennsylvania

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

It seems that, for Joe Lieberman, "these dead" shall in fact have ultimately died in vain.

Senator Lieberman's glib comment that "Lincoln suspended habeas corpus" and "we're in another time like that," indicates that he needs a brush up, not only on the history of the Civil War, but on Lincoln's rationale for the suspension of habeas corpus. Lincoln suspended it during a time of rebellion, not potential threats from terrorists. Lincoln suspended habeas corpus in order to preserve the Constitution, not because he felt the Constitution was a malleable document that could be adjusted as he saw fit or because of "necessity." Writes Jeffrey Rosen in a review of Daniel Farber's Lincoln's Constitution,

Today, self-styled constitutional pragmatists and defenders of broad executive power in wartime have little patience for the technical details of the arguments that Lincoln offered to justify his actions. The president should be able to do whatever he likes to defend the country against a serious threat, they argue, and the legal justifications for his actions are little more than retrospective window-dressing that should not be allowed to constrain his options in any meaningful way. But this cynical view of the malleability of constitutional law was not Lincoln's view. Legal arguments were central to the formation of the policies that allowed him to achieve greatness as president. They constrained him from committing excesses and also liberated him to take extraordinary action when the exigencies of the threat required it.

Far from showing contempt for the coordinate powers of Congress in wartime, as some modern defenders of executive power do, Lincoln was careful to enlist congressional approval for his most controversial actions in ways that strengthened him as a leader in peace and in war. He was not paralyzed by legalisms, and was willing to test the limits of ambiguous constitutional restraints when he believed that the survival of the entire Constitution required nothing less. Ultimately, the power of his constitutional faith in liberty and equality transformed the existing constitutional order into something greater than it had been before. But Lincoln did not spring fully formed into greatness; he made himself great by the strength of his vision and the wisdom of his decisions. To the degree that his legal training and vision were part of what guided his actions at every turn, it is impossible to understand Lincoln as the savior of the Union without also understanding Lincoln as a lawyer.

In his illuminating and unexpectedly timely book, Daniel Farber sets out to evaluate Lincoln's wartime decisions by taking seriously the legal arguments that Lincoln offered to justify them. By and large, Farber concludes, Lincoln did quite well in respecting constitutional boundaries during the greatest constitutional crisis in American history. "Most of what Lincoln did ... was in fact constitutional," Farber concludes. "He was correct that secession was unconstitutional, a revolutionary act rather than a legitimate exercise of state sovereignty. He was also correct that, in actual areas of war or insurrection, he had emergency power to suspend habeas and impose martial law." Not everything Lincoln did was constitutional, to be sure: he expanded the jurisdiction of military courts in the North beyond constitutional bounds, and he occasionally infringed free speech, although much less than he might have done. He called unilaterally for volunteers to expand the regular military — an action that clashed with Congress's power to raise armies — and he transferred federal funds to private parties to pay for the early phases of the war, which violated the constitutional requirement that all money drawn from the Treasury must be legally appropriated by Congress. In both cases, however, Lincoln sought congressional approval after the fact, and Congress promptly supported him. Farber calls this, on balance, "not a perfect record, but a creditable one, under incredibly trying circumstances."

The most striking signs of Lincoln's respect for legal restraints on the president's power are the arguments that he chose not to make. Unlike many modern defenders of increased presidential power in wartime, he did not claim that public necessity allowed him to do whatever he thought necessary to preserve the Union. He was not an executive unilateralist, contemptuously refusing to acknowledge Congress's constitutional authority over the army and the national purse. He recognized that public emergencies often forced him to act without congressional authorization; but he also understood that this made him constitutionally vulnerable if Congress refused to support him after the fact. He rarely acted in ways that clashed with the explicit will of Congress, preferring instead to reserve his displays of unilateral authority for the gray areas where Congress had not made its intention clear. (In such gray areas, the modern Supreme Court has stressed, the president has broad discretion to act during times of emergency.)

Lincoln did not claim a sweeping power to start a war without congressional approval, but only the more limited authority to respond to hostile fire against the American military. Instead of arguing crudely that ordinary legal procedures should be suspended during times of war, Lincoln asserted the much narrower power to suspend ordinary legal procedures only in areas of war or insurrection where they could not plausibly be maintained. Those who invoke Lincoln on behalf of the need to ignore ordinary constitutional protections in times of war are bad historians as well as bad pragmatists, for Lincoln showed that it is in fact possible to save the nation and the Constitution at the same time. And what enabled him to accomplish this remarkable task was the precision of his personal engagements with the legal arguments on which he relied. He did not rely on speechwriters or aides to provide legal justifications for his actions retrospectively; he justified them himself in the course of formulating them. In his hands the justifications shaped the actions, rather than the other way around.

These are difficult issues, I don't deny that. And having been in New York City on Sept. 11, 2001, I can attest that the threats we live under in Our Great Times are very real ones. But to glibly assert that Bush is simply using powers that Lincoln snatched for the Executive branch is to ignore the nature of the threats the nation faced in 1861 versus 2006. In 1861 the Constitution was under threat from Southern seccessionists. In 2006 the Constitution is not under threat from Islamo-whatevers; it is under threat from a grasping unilateralist Executive branch and an all too compliant Legislative branch.

Well, I guess then there is some similarity between the times. In both eras, the Constitution was and is under threat from within.

UPDATE: Sanctimonious Joe gets shrill. Such incivility. As Digby notes, wish he'd aim some of his fire on Republicans for a change. It is an interesting angle Digby takes. I remember my father -- a staunch Republican who'd voted for Nixon in '68 and '72 (though, good Catholic that he is, voted Kennedy in '60) -- taking me to the bookstore to buy a copy of the transcript of the Nixon tapes. What finally killed Nixon for my father was not the dirty tricks, the slush funds, the anti-semitism. It was the profanity. It shocked and disgusted the hell out of him.