Monday, November 11, 2013

Yoo on Lincoln at War

John Yoo, University of California at Berkeley School of Law, has posted Lincoln at War, which is forthcoming in the Vermont Law Review 38 (2013).  Here is the abstract:    
Credit: LC
This year presents an opportune moment to reexamine President Abraham Lincoln’s approach to executive power. This year’s 150th Civil War anniversaries are inextricably tied to Lincoln’s exercise of his office. The Emancipation Proclamation and the Gettysburg Address drew deeply on Lincoln’s broad vision of the President’s commander-in-chief and executive powers in wartime. A century-and-a-half later, our political system continues to struggle over the constitutional questions that vexed Lincoln. Just as Lincoln had to navigate conflicts between the executive and legislative powers to win the Civil War, President Obama and his immediate predecessors have confronted the same questions in fighting a very different conflict today.

Lincoln laid the foundations of his Presidency on a vigorous and dynamic view of his right to advance an alternative vision of the Constitution. If Lincoln and the Republican Party had accepted the supremacy of the judiciary’s interpretation of the Constitution, Dred Scott would have foreclosed their core position that the federal government should stop the spread of slavery. Likewise, Lincoln’s Presidency could not have achieved its successes without a proactive exercise of his constitutional powers. A passive attitude that conceded to Congress the leading role in setting policy, or one that waited on the Supreme Court to decide matters, would have led to a sundered nation or military disaster. Lincoln became America’s savior because he preserved the Union, freed the slaves, and launched a new birth of freedom. He set in motion a political, social, and economic revolution, but one that had the conservative goal of restoring the nation’s constitutional system of government. He could have achieved none of this without a broad vision of his office.