Michael Zuckert has written an impressive book on Lincoln and what he calls “the paradox of democratic sovereignty.” Twenty years in the making, it is an exhaustive look at a “question that haunted Lincoln through the entire course of his political career” (p. 1). It is Zuckert’s contention that Lincoln’s political thought was “directed to [this] one abiding question” (p. 1). What does Zuckert mean by this claim? Any nation dedicated to the proposition that all men are created equal—in other words, that it is constituted by democratic sovereignty—is inherently vulnerable to self-destruction given the self-empowerment such sovereignty entails. Thus, the problem of perpetuation is a recurrent one, and it preoccupied Lincoln from the very beginning of his public life. It also informed his actions as a statesman, bringing his thought and deeds together into a coherent whole.
Given the problem of perpetuation, Lincoln’s 1838 Young Men’s Lyceum Address looms particularly large in Zuckert’s account of Lincoln. It was Lincoln’s first attempt to deal with the paradox (here in the form of mob law). More importantly, however, Lincoln effectively lays the theoretical groundwork for his own political career in this speech. Given Donald Trump’s relentless assaults on American democratic norms and institutions both in and out of office, the Lyceum Address has received a great deal of attention of late. In it Lincoln identified what he believed to be a persistent threat to the American polity: the rise of a man of ambition who would not be content to maintain the political gifts bequeathed by the founding generation but would seek to tear them down instead, thereby making his mark in history. Unfortunately, as Zuckert notes, the Lyceum Address did not offer a solution adequate to the threat it identified.
Not long afterward, however, Lincoln modified his thinking about the post-founding world and claimed there was another option, a third way to move forward. Spurning both mere maintenance of the founding legacy and the (noncreative) destruction of it, the man of great political ambition would look to extend what the founders had achieved in new directions. Zuckert places Lincoln in this camp: “the family of the lion, or the tribe of the eagle” (p. 14).
Lincoln himself, then, enacted the paradox of democratic sovereignty on Zuckert’s account, especially once he became president, insofar as he posed a threat to the very regime he was duty-bound to save—in his case from secession, which was also a manifestation of democratic sovereignty. This slavery-induced crisis raised the thorny question of what a constitutional democracy can do to defend itself and remain a democracy worth defending. This is familiar territory for Lincoln scholars, and Zuckert is determined to defend Lincoln against any accusation of tyranny.
Accordingly, Zuckert analyzes two Civil War episodes that put Lincoln to the test: his suspension of the writ of habeas corpus and his issuing the Emancipation Proclamation. Regarding the former, “Lincoln claimed the power to suspend was his—period” (p. 283). It was not shared; nor did he need (or seek) ratification or subsequent authorization. Against the claim that he usurped a congressional prerogative when he suspended the writ not just in the Northeast and mid-Atlantic regions but also nationally, Zuckert notes that the wording of the suspension, though it is located in Article I, does not specifically cite the agent taking responsibility for it. Given the emergency circumstances (“cases of Rebellion or Invasion”), it is the president who is best positioned to exercise this tremendous power, especially because Congress might not be in session when the need arises. What is more, Zuckert links this power with the president’s role as commander-in-chief who, with agents on the ground, is uniquely qualified to gauge when public safety may require the suspension.
These considerations ultimately lead Zuckert to a remarkable conclusion: “Congress does not possess the power to suspend habeas corpus,” though it can hold the president responsible for doing so (pp. 287–88). Given this reading, one might ask Zuckert why the framers did not insert the power to suspend in Article II. What is more, although noting that “864 people were imprisoned and held without trial in the first nine months of the war,” a number that “greatly increased” after February 1862, we learn nothing of the fate of these arguably political prisoners (p. 279).
Lincoln’s most famous political prisoner was former Ohio congressman Clement Vallandigham, who was tried, convicted, and nearly sentenced to death by a military tribunal (a kangaroo court) for opposing the war and the draft. Lincoln was not just locking up alleged subversives but was also silencing political opponents. Following a national outcry, Lincoln removed Vallandigham from prison and sent him into exile in the South, where he most certainly did not want to go. Lincoln treated Vallandigham as a mere object, something he could use for political purposes. Zuckert does not mention Vallandigham nor the 38 Native Americans Lincoln executed in Minnesota in 1862 after the Dakota Sioux violently resisted America’s westward imperial expansion. It was the largest mass execution in American history and followed trials that routinely lasted no more than five minutes at which the non-English speaking defendants had no legal representation. That the 38 were hanged together indicated the racial character of the execution. In front of a crowd of some 4,000 spectators, the bodies were left hanging for a half-hour. Lincoln did commute the sentences of more than 260 Dakota Sioux, but he needed to kill some of them to ensure that Minnesota would meet its troop obligations for the war. Zuckert does not mention the Dakota Sioux either.
Regarding Emancipation, Zuckert explores familiar territory. Lincoln’s emancipation order was not the first during the Civil War. In August 1861, General John Fremont declared martial law in Missouri and freed rebel-owned slaves. Lincoln overturned Fremont’s decision, fearing that he might lose several border states to the Confederacy. By the time Lincoln issued his emancipation order, circumstances had changed. Rooted in the doctrine of military necessity, Lincoln could justify the confiscation of what the South considered its property. The results of Lincoln’s daring move were noticeable: 130,000 Blacks enlisted by the spring of 1864 and 200,000 by Lee’s surrender. As Zuckert notes, “The needed resource [was] Black troops” (p. 296). It was also important to deny the Confederacy its slave population, a critical war resource. These necessities allowed Lincoln (in his words) “to [lay] a strong hand on the colored element” (p. 299). Once again, Lincoln reduced people to things, a resource to be used to prosecute a war. Lincoln turned to Blacks, whose colonization he sought, as a resource because the North could not win what amounted to a white war it once thought would be a quick easy victory because of its superior manpower and resources (p. 227).
Zuckert’s conclusion that “the charge that Lincoln acted tyrannically appears quite overwrought” is at the very least contestable. Even if one shares Zuckert’s celebration of Lincoln’s third way at Gettysburg, which would allow him to exceed the greatness of the founders thanks to his “new birth of freedom,” it is difficult to share Zuckert’s sanguine disposition about (at least some of) its costs.
