Lincoln and Civil Liberties

The question of whether or not Abraham Lincoln overstepped his constitutional authority in suppressing dissent and curtailing civil liberties is certainly a timely one. Indeed, hardly a day goes by without some new reference to this very topic in a contemporary context, whether it is a story about Edward Snowden and the National Security Agency, or a debate over whether military drones should be used in surveillance missions over the United States. Just how much freedom should be sacrificed in the name of security was and is surely a perilous and delicate problem for any president to address, or at least one would hope. In a war or other national emergency, the president has an obligation as commander-in-chief to protect the lives and interests of the United States and its citizens, and that obligation sometimes requires testing the constitutional boundaries of executive authority. On the other hand, the commander-in-chief and members of the armed forces take an oath to support and defend the Constitution of the United States, and a severe curtailment of constitutional liberties runs the risk of subverting the very principles they have sworn to protect. As Frank Williams observed, “The government walks a fine line between protecting the civil liberties we all hold dear and guarding the safety of our country’s citizens.”[1]

No other president has led the nation during a crisis quite like the Civil War, a conflict that threatened the United States on an existential level. Roosevelt was forced to respond to an attack on American soil, but—and this may be fully understood only in hindsight—neither the Japanese nor the Germans were an immediate and direct threat to the U.S. mainland, and probably never intended to be. George W. Bush faced a similar test early in his first term, and although the September 11 attacks were horrific and an American response was fully justified, it simply was not the case that a few terrorists holed up in caves in Afghanistan posed a threat to the very existence of the United States. Admittedly, this view of Lincoln and the Civil War requires a couple of assumptions: first, that the Southern states did not have the constitutional right to secede; and second, that Lincoln had the constitutional authority to coerce them back into the union. James Buchanan had adhered to the argument “that states had no right to secede and that the federal government had no right to stop them if they did,”[2] a position that Craig Lerner believes the founders themselves would have endorsed.[3] Lincoln agreed with the first half of that formulation, but disagreed that he did not have the authority, and indeed the obligation, to force them back into the union. It is in that context that one must consider Lincoln’s actions as president.

Lincoln most assuredly curtailed civil liberties in pursuit of his goals, especially in his suspension of habeas corpus. However, as with all presidents and their policies, one’s opinion of Lincoln and habeas corpus cannot help but be colored by one’s opinion of Lincoln in general and the assumptions outlined above. The Constitution clearly states that the privilege of habeas corpus may be suspended during a rebellion or invasion. There are two issues at play here: 1) Did the Southern states have the constitutional right to secede? If so, they were not in rebellion and habeas corpus should not have been suspended. Lincoln obviously did not adhere to this view. 2) Who has the authority to suspend the privilege of habeas corpus? The Constitution does not specify, but habeas corpus is discussed in Article I, which enumerates legislative functions and not executive powers. Lincoln, however, felt that it only made sense that the commander-in-chief should be the one to exercise this authority.[4] If one believes that the union is a voluntary one, or if one believes that habeas corpus may be suspended only by Congress, then Lincoln’s actions certainly appear to be despotic. As with most issues, however, the real answer lies somewhere in the middle. As Neely pointed out, “The Democratic depiction of Lincoln as a tyrant was to have more influence on history than it merited, but like many political caricatures, it contained a certain element of truth.”[5]

[1] Frank J. Williams, “Civil Liberties v. National Security: The Long Shadow of the Civil War,” Civil War Times 46, no. 4 (June 2007): 24-29,

[2] Steven E. Woodworth, This Great Struggle: America’s Civil War (Lanham, MD: Rowman & Littlefield, 2011), 30.

[3] Craig S. Lerner, “Saving the Constitution: Lincoln, Secession, and the Price of Union,” Michigan Law Review 102, no. 6 (May 2004): 1294,

[4] Mark E. Neely, Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 68.

[5] Ibid., 210.

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