Panel 1 Lincoln, Executive Power & The Modern Presidency

Marisa Floriani, Managing Editor of the Government Law Review Fireplace Blog

Lincoln and Executive Power — Hon. Frank J. Williams, Chief Justice, Rhode Island Supreme Court 

          Hon. Frank J. Williams opened the symposium with “the U.S. suffered an unexpected attack.”  As he described the state of America during war time, he drew parallels between Abraham Lincoln and George W. Bush.  As a member of the audience, I couldn’t help but think – the more things change, the more things stay the same.  Hon. Williams highlighted the difficult legal position any president is placed in during war time.  He brilliantly stated that a doctor gives a sick man medicine that he would not give a well man, and the same logic should be applied for the power a president exerts during war time as opposed to a time of peace.

         During the Civil War, Lincoln increased the army and navy, appropriated money, declared a blockade, and, most controversially, authorized the suspension of the writ of habeas corpus.  These acts required congressional consent; however, Lincoln completely bypassed that requirement.  According to Hon. Williams these were Lincoln’s necessities in order to handle the “northern realities.”  So what was Lincoln’s constitutional basis to suspend the writ of habeas corpus? 

            Hon. Williams described two cases that reflected Lincoln’s view of the Constitution.  First, Lincoln acted then he went to Congress for ratification.  Lincoln had realized he had stretched his power, but Lincoln acted out of necessity.  Second, Lincoln criticized the Albany Democrats for invoking safeguards, for it was Lincoln’s belief that their arguments would have been stronger if the safeguards had been placed during wartime.  Therefore it is clear from Hon. Williams’ discussion that it was Lincoln’s belief that war-time presidents should be allotted certain flexibilities, and Lincoln acted accordingly.

       Although his actions may have eventually been deemed unconstitutional, Lincoln has been forgiven by society.  Does this mean that one day society will forgive George W. Bush for his decisions in war time?  Only time will tell.


Lincoln: Protecting the Nation and the Constitution — Dr. Louis Fisher, Specialist in Constitutional Law, Library of Congress

            Abraham Lincoln has not been America’s only president during war-time.  In fact, numerous presidents have been faced with that taunting task.  But Dr. Louis Fisher created a grand comparison between Abraham Lincoln and James Polk and their actions in war time. 

            Polk declared that there was hostility between American and Mexican troops.  But Dr. Louis Fisher brilliantly points out that hostility does not equate war.  But nonetheless, Polk had declared war on Mexico for invading “America.”  In December of 1847, Lincoln was a new member to Congress and proposed the Spot Resolution.  Lincoln tried to tell Congress and Polk that the land on which foreign troops were invading was not American land.  Lincoln’s efforts, however, went unnoticed (or just ignored).  But Polk was trying to justify what he was doing, as many after him would try to do as well.  Eventually, Polk would admit that he was relying on claims and assertions, as opposed to facts, and he was wrong.

            Lincoln acted similarly in some respects.  Lincoln would send mixed signals, depending on his audience in order to get support for his cause.  He had to do what he had to do, a theme reminiscent in this morning’s panel – Lincoln acted first then went to Congress.  But Lincoln was still different than Polk.  Polk was looking to expand American territory, while Lincoln had to preserve it.  Polk spoke deceptively, while Lincoln was always true to the facts.  Lincoln did not do what others have done.  Lincoln did not claim inherent powers, which are implied from Constitution.  According to Dr. Fisher, looking for the implied powers is stepping beyond the meaning of the Constitution.  It will be interesting to see how future presidents hold the Constitution during war-time.


Public Ambition in American Constitutionalism and the Presidency — Dr. Mark Graber, Professor of Law and Government, University of Maryland School of Law

         Dr. Mark Graber posted a question that many in the room were not prepared to answer – what if Lincoln was just an ambitious politician?  What if the man society has held to be a demi-god merely jumped on the anti-slavery bandwagon in order to get elected?    

            Today’s society is inundated with ambitious politicians.  Dr. Graber defines ambitious politicians by a few attributes.  First, they will exaggerate threats.  He posed the idea that Lincoln may have exaggerated the threat of the spread of slavery.  Second, ambitious politicians always appeal to the “forgotten class.”  However, it is a bit of a dichotomy — the “forgotten class” is always the “middle class” because they are the majority voter.  Dr. Graber wondered if Lincoln had molded the moral issue inherent in slavery in order to appeal to the middle class. 

            But Dr. Graber makes one thing clear – Lincoln was a decent individual who was not corrupt, characteristics that seem to be forgotten amongst certain politicians today.  Lincoln played by the rules of the game, even if he broadly construed them.  But Dr. Graber merely wanted to serve as the checks-and-balances of a man who our society so highly esteems.


Executive Power During National Crises — Neil Kinkopf, Professor of Law Georgia State University College of Law

            Neil Kinkopf focused on the actions of presidential administrations as a whole as opposed to analyzing any commander-in-chief.  Kinkopf described the notion of openness, and he highlighted the relationship between a presidential administration and its perception of statutes. 

            First, Kinkopf discussed the notion of openness.  He asked the audience to ensure the Obama Administration does act with transparency.  Not only is transparency an integral part of successful government, but it is essential to hold any president and his administration to their promises.  Kinkopf emphasized that it is important to know if the government is following the law it enacts, but society cannot follow the government’s actions if society is not permitted to see it.

            Second, Kinkopf discussed the attitude of presidential lawyers have to statutes.  In modern times, presidential lawyers seem hostile towards statutes.  Of the eleven statutes analyzed under the Obama administration, two have been deemed unconstitutional.  This is wildly contrasted with Lincoln’s statistics.  During Lincoln’s administration, one hundred eighty-two statues were reviewed and all were deemed constitutional.  Kinkopf offered an explanation for the stark distinction.  First, that Congress used to be much more respectful to the president and did not legislate nearly as much.  But Kinkopf did his own research and concluded that a present day administration would probably find twenty-nine of those one hundred eight-two unconstitutional, which would be a percentage much more comparable to present day.  So what is a better – an administration that is largely accepting or an administrative that is combative?  We’ll let you be the judge.

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