Curtis on Paulsen on Lincoln as Commander-in-Chief

Michael Kent Curtis, Wake Forest, takes on Michael Paulsen's use of Lincoln's presidency to defend expansive executive war powers in an article recently published in the Maine Law Review, and just posted on SSRN. The title is Lincoln, the Constitution of Necessity, and the Necessity of Constitutions: A Reply to Professor Paulsen. Here's the abstract:

Periodically, President George W. Bush has made far reaching claims for unilateral executive power as Commander-in-Chief in the “War on Terror.” So, scholarly commentary on the subject of presidential power is timely. Professor Michael Paulsen has claimed that the president has vast and largely unchecked powers to deal with times of great crisis - by virtue of his oath to protect the Constitution. He supports that claim by appealing to the constitutional analysis espoused by Abraham Lincoln when he faced the crisis of the American Civil War. “If I am wrong [in my claims for vast and largely unchecked executive power],” Paulsen writes, “Lincoln was wrong.”

In this response to Paulsen, Michael Curtis argues that there are compelling reasons not to accept some of Lincoln's actions and justifications as a precedent. He reviews Lincoln's actions in the Vallandigham case - suppressing anti-war speech that advocated peaceful political action - and concludes that Lincoln's actions were quite wrong. Understanding why helps to show why citing Lincoln to support the “anything-to-win” - with-the-president-as-the - judge-of-necessity approach is deeply flawed. Indeed, it is so flawed that even Lincoln repudiated it on the issue of suspending elections if necessary to win. Meaningful elections require free speech and other guarantees that support democracy, such as habeas corpus and criminal procedure guarantees. So, recognizing an exception for free and meaningful elections entails much more than simply voting. Paulsen suggests Lincoln's theory in the Vallandigham case is consistent with modern free speech doctrine. That, however, is a mistake.

The article also discusses and disputes the often suggested idea that we suppress for brief periods in times of crisis, but the suppression has no long term negative effects. Of course, the war on terror crisis may continue for hundreds of years. More fundamentally, repression does often facilitate later repression, as the Civil War and World War I episodes show. While the World War I repression did soon end, that is not always so. The experience of suppression of free speech and democracy in the South interest of slavery and later in the interest of maintaining the racial caste system shows that repression can last for more than a century. We do not necessarily quickly and spontaneously spring back.