Benjamin A. Kleinerman: The Lincoln Presidency Offers the Best Guide to Executive Power





[ Benjamin A. Kleinerman is assistant professor of international studies at the Virginia Military Institute.]

... In an article in the December issue of Perspectives on Politics, Mr. Kleinerman argues that Abraham Lincoln, who curtailed civil liberties more aggressively than any president before or since, conceived of his own wartime powers in a sophisticated way that modern-day presidents would do well to study. In an interview with The Chronicle, Mr. Kleinerman elaborated on his views.

Q. You argue that constitutional scholars have generally been divided into two broad camps on the question of presidential emergency powers: a Jeffersonian view and a Hamiltonian view. Before he took office, you say, Lincoln took the Jeffersonian position. What is that position?

A. The Jeffersonian view is that when the executive acts outside the Constitution, he does so, as one scholar puts it, as a criminal. And as that criminal, he then must seek the "pardon," so to speak, of the rest of the country, after his actions have taken place and after the emergency has passed. In other words, public approval then stands as the standard by which one determines whether he acted correctly.

Q. The Bush administration, by contrast, is generally drawing on the Hamiltonian position.

A. The Hamiltonian argument is that the Constitution itself admits of extraordinary action in those circumstances when the executive deems it necessary to act. Rather than, as in Jefferson, the president understanding himself as acting outside the Constitution during emergencies, Hamilton thinks the executive should understand himself as acting within a flexible Constitution that permits actions necessary for the nation's security.

Q. And how did the Civil War alter Lincoln's Jeffersonian views?

A. In an interesting way, Lincoln, I think, blends certain aspects of both views into his view. ... He came to think, by the end of the war, that for the executive to seek public approval for his actions, as Jefferson would have it, invited the public to believe itself capable of overrunning the Constitution any time it wanted. And he thought that constitutionalism was, I guess, more precarious than that ... and so the problem with the Jeffersonian standard is that it encourages a sort of lack of constitutionalism on the part of the public. He worried that the public would become, in a way, addicted to executive power, even after the crisis subsides -- addicted to the quickness and the easiness and the efficiency of the executive, by contrast to the more difficult and laborious process that's involved when you go through all the constitutional steps.

Q. So, if not public approval, what standard did Lincoln believe could justify presidents' use of extraordinary powers during emergencies?

A. He believed that necessity -- the objective fact of the emergency -- should be the standard. The power that an executive has during a crisis derives only from its power to preserve the Constitution. ...




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