War and Peace
Lincoln and Bush on vigilance and responsibility.
11:00 PM, Dec 20, 2005 • By MACKUBIN THOMAS OWENS
I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good for a well one. Nor am I able to appreciate the danger apprehended by the meeting [of the New York Democrats] that the American people will, by means of military arrest during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.
The means to preserve the end of republican government are dictated by prudence, which according to Aristotle is, the virtue most characteristic of the statesman. Prudence is concerned with deliberating well about those things that can be other than they are (means). In political affairs, prudence requires the statesman to be able to adapt universal principles to particular circumstances in order to arrive at the means that are best given existing circumstances. For Bush, as well as for Lincoln, preserving republican liberty requires the executive to choose the means necessary and proper under the circumstances.
IN TAKING THE STEPS he believes to be necessary to preserve republican government, it is important to note that the president possesses his own inherent constitutional powers. The presidency is not, as one commentator suggested, merely "a kind of independent agency under the ultimate control of Congress." The president is the commander-in-chief, which directly bestows upon him powers in times of military crisis that are not derivative of any congressional power. One of these powers is the prerogative.
THE AMERICAN FOUNDERS and the architects of the Constitution were intimately familiar with the works of the 17th century British philosopher John Locke, so much so that he has been called "America's philosopher." According to Locke, the prerogative is "the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Since the fundamental law that the executive ultimately must implement is to preserve society, it is "fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved."
The prerogative is rendered necessary by the fact that laws arising from legislative deliberation cannot foresee every exigency. For the safety of the republic, the executive must retain some latitude for action. A case in point was Lincoln's actions in the wake of the attack on Fort Sumter, to call up volunteers, declare a blockade of Southern ports, and suspend habeas corpus in some areas. Bush's actions regarding domestic surveillance of terrorists are of the same cloth.
Of course, prudence dictates that the prerogative be exercised rarely, i.e. only during the most dire emergencies. As Lincoln observed in his letter to Corning, what is applicable during time of war is not during a time of peace.
Today, once again we face the perennial tension between vigilance and responsibility as the United States is the target of those who would destroy it. In all decisions involving tradeoffs between two things of value, the costs and benefits of one alternative must be measured against the costs and benefits of the other. At a time when the United States faces an adversary that wishes nothing less than America's destruction, President Bush is correctly taking his bearing from Lincoln, who understood that in time of war, prudence dictates that responsibility must trump vigilance. In response to criticism of his suspension of the writ of habeas corpus, Lincoln asked, ". . . are all the laws but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" Lincoln's point is as applicable today as it was during the Civil War. If those responsible for the preservation of the republic are not permitted the measures to save it, there will be nothing left to be vigilant about.
Mackubin Thomas Owens is professor of national security at the Naval War College.