presidents, war, and *statutes*

Sanford Levinson SLevinson at
Mon Dec 19 07:58:04 PST 2005

I assume that Mark meant to write "I do not think that Lincoln was under
a constitutional duty...."  But why not?  To be sure, there's nothing in
the text requiring Lincoln to call Congress into special session at all,
let alone at the earliest possible time.  So it's an easy case if one
simply "reads the text."  But this is also requires reading the text out
of context.  Isn't there something profoundly disturbing and
"anti-constitutional" about taking advantage of "literal" constitutional
text to violate the almost certain "spirit" of the Constitution,
captured, among other places, in Article IV's invocation of a
"Republican Form of Government"?  (Or are we to believe that such a
government is "guaranteed" only to the states, and that it is perfectly
all right if the national government drifts toward non-republicanism?)
If one wants to play originalist mindgames, then imagine that the
Philadelphians had had it directly put to them that "do you mean to say
that a President faced with civil war could refuse to call Congress into
special session in order to make key decisions himself, without facing
any potential opposition from (or duty to consult with) Congress."  How
likely is it that they would have said "yes," as against something like,
"Surely you don't think that anyone virtuous enough to be president
would act in such a patently monarchical manner?" or "That possibility
didn't occur to us, since we assumed that the President would always be
imbued with republican virtue, but, just in case, we will put in place a
provision whereby Congress can call ITSELF into special session upon the
joint declaration of the Speaker of the House and the President pro Tem
of the Senate"?   Doris Kearns places a great deal of emphasis on
Lincoln's political genius of bringing his chief opponents (within the
Republican Party) into his cabinet.  But he had other opponents,
obviously, who were ensconced in Congress.  


From: owner-lawcourts-l at [mailto:owner-lawcourts-l at] On
Behalf Of Mark Tushnet
Sent: Monday, December 19, 2005 9:32 AM
To: marty.lederman at
Cc: Stephen L. Wasby; Conlawprof at; lawcourts-l at
Subject: Re: presidents, war, and *statutes*

The closest Lincoln came, I think, was in the suspension of habeas
corpus pending Congress's return.  Here's a slightly edited version of a
footnote I've written dealing with that decision:  "Lincoln provided at
least an alternative defense of his suspension of habeas corpus, that
the Constitution authorized him to suspend the writ until it was
possible to obtain a suspension from Congress, as it was not in the
early days of the Civil War.  Congress was not in session during that
period, and I do not that Lincoln was under a constitutional duty to
ensure that Congress reconvene at the earliest possible moment.  Or,
perhaps more precisely:  In April Lincoln called for Congress to
reconvene on July 4.  Within a few weeks thereafter, he concluded that
suspension of the privilege of the writ was desirable.  One could
perhaps construe the suspension clause to require the President to call
Congress into session at the point he begins seriously to contemplate
such a suspension, or to advance the date of an already-summoned new
session at that point, but such an interpretation seems to me strikingly

marty.lederman at wrote:

	Steve:  Does Kleinerman discuss whether any of Lincoln's
emergency actions actually violated statutes?  If so, did Lincoln
acknowledge that he was acting contra legem, and, if so, did he use the
Commander-in-Chief Clause as justification?  Was the suspension of
habeas inconsistent with extant habeas statutes?  Did the Emancipation
Proclamation in effect violate existing Fugitive Slave Acts, or other
	As I've always understood it (not necessarily accurately),
Lincoln was acting in an "emergency" situation, while Congress was not
convened; that Congress, when it returned to D.C., actually ratified, by
statute, virtually all of Lincoln's most controversial actions; and,
most importantly, that Lincoln conceded that if Congress thought Lincoln
had gone astray, Lincoln would follow any statutory directives, and
would subordinate his own judgments as Commander-in-Chief to the
superseding decisions of the legislature.  
	Can anyone tell me if that account is accurate?  If so, does it
remain the case that Lincoln was violating pre-existing statutes "in the
interim," while awaiting congressional decision?
	More broadly, can anyone identify any cases prior to this
Admininistration in which a President has invoked his Commander-in-Chief
power as justification for actually acting contra legem?  
	Thanks in advance.

		-------------- Original message -------------- 
		From: "Stephen L. Wasby" <wasb at>
<mailto:wasb at>  
		Readers of this list might be interested in an article
in the newest issue of Perspectives on Politics (Vol. 3, #4, Dec 2005)
from American Political Science Association:  Denjamin A. Kleinerman,
"Lincoln's Example: Executive Power and the Survival of
Constitutionalism," 801-816, an effort
		to bring a different perspective to the present debate
about constitutions, executive prerogative, and war time "necessities."
		    Steve Wasby


presidents, war, and constitutions
"Stephen L. Wasby" <wasb at> <mailto:wasb at> 
Mon, 19 Dec 2005 13:14:14 +0000
Conlawprof at

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