In the wake of the Bush administration's use of executive power
since 9/11, Abraham Lincoln's executive actions during the Civil
War have received more attention than usual. Typically associated with the
idea that constitutions should recede in favor of the rule of one during
crisis situations, Lincoln's actions have been used on one side as
the implicit and even explicit basis of presidential claims to increased
power and on the other side as the example par excellence of what
presidents should not do. Taking issue with this conventional
interpretation and continuing the more recent scholarly recovery of
Lincoln's profound concern for constitutionalism, I explicate the
principles that guided Lincoln's use of executive power during the
Civil War. By drawing out the importance of political necessity as the
basis for “prerogative” over and against both popular approval
and unlimited constitutional powers, I show how this principle also
provides an alternative perspective and even an antidote to the current
scholarly debate concerning whether constitutions are better preserved by
“Jeffersonian” or “Hamiltonian” prerogative.
Lincoln's example also shows us that we should not legalize,
regularize, or institutionalize those powers that may be necessary to
avert a crisis. Perhaps most importantly, Lincoln's statesmanship
teaches us that constitutions can moderate and limit discretionary
executive power only if the people learn an attachment to their
Constitution that does not come naturally to them.Benjamin A. Kleinerman is assistant professor in the
Department of International Studies at the Virginia Military Institute
([email protected]). His current research focuses on the relationship
between executive power and constitutionalism. The author thanks Bernard
J. Dobski, Steven Kautz, and M. Richard Zinman for commenting on earlier
versions of this manuscript, and the anonymous reviewers for their helpful
comments.