Brian Pulito

       When one considers all that occurred during the very turbulent period of the American Civil War, President Abraham Lincoln is usually considered to be a hero. During his presidency, he managed to keep the United States of America together and gave a people held in bondage, American slaves, the freedom they so desperately deserved. Like almost every president who preceded him, Lincoln's actions at the time were somewhat controversial. Some of his most controversial decisions might actually be considered now to be abuses of the Presidential power. During his terms as president, he suspended the Writ of Habeas Corpus, and upheld the Declaration of Independence above the Constitution.
       The writ of Habeas Corpus protects Americans from being unjustly imprisoned. Without it, law is a sham. The writ creates the gap between freedom and despotism. Its origin dates back to the formation of our country, and the tenet that all men have equality under the law. The writ ensures that no on can be unjustly imprisoned. Any prisoner feeling this right is being abused has the ability to petition to be seen before a judge, who can declare his arrest unlawful and have him released. Yet, during the initial year of the American Civil War, Lincoln used his power and removed that right, first in Baltimore, New York, and eventually the entire union. He authorized military officers to suspend the writ before he made an official proclamation. Joshua Kleinfeld, an author who has researched this issue, wrote that "when Lincoln suspended the Writ of Habeas Corpus, he clothed himself with more power then any individual had possessed in America before, or since.
       Lincoln contended that he removed the Writ in order to ensure victory and preserve the union. In fact he preserved more power for himself and removed a great deal from the United States legislative and judicial branches. The first proclamation to remove the Writ of Habeas Corpus was made in September of 1862. Not only did this proclamation, which had no scheduled end, remove the writ, it also established Marshall law. It gave full power to close down "hostile, anti war newspapers," and to arrest individuals for protesting the war.
       Lincoln removed a great deal of power from the legislative branch with this proclamation. He was not empowered under the Constitution to make such a declaration. In fact, that right belonged to Congress alone. Roger Taney, Supreme Court Chief Justice, contended that Article I of the Constitution declares: "a state of rebellion is the only time when Congress could declare the writ removed." He also believed: "This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive branch.."
       The Supreme Court went on to order Lincoln to bring prisoners who had been arrested without reason before the court. He refused on the notion that the writ's suspension gave him that right to do so. Lincoln contended that, "It was not believed that any law was violated". The fact that he got away with suspending the Writ of Habeas Corpus gave more power to the presidency during a time of war than ever before. Nearly 100 years later, Franklin D. Roosevelt, would once again abolish the writ in order to imprison Japanese Americans during the Second World War. Lincoln set a precedent which F.D.R later used to justify his own wartime actions.
       By ignoring the rights of the judicial and legislative branches of the government, Lincoln abused the power of the presidency by giving it more power than it was allowed by the Constitution. The Declaration of Independence is simply a document, not a tool--a paper that declared this country's intentions and justification for separation from a hostile tyrant, England. The founding fathers of our country never intended for it to be held above the Constitution. During his Gettysburg Address, Lincoln tried to justify the emancipation of slaves, which until that time had been considered unconstitutional, by upholding the Declaration of Independence. The Declaration states "all men are created equal," while the Constitution is very selective in its wording of which men are in fact considered to be equal.
       Lincoln used the Gettysburg Address to tell Americans just where he stood on the issue of slavery. This changed the war from a battle to reunite the union into an ideological fight for the rights of the people specifically slaves. Gary Wills believes that Lincoln used the Gettysburg Address to "reshape the republic." It makes reference to the fact that, "America is dedicated to the proposition that all men are created equal.". Until that time, the United States had not been dedicated to that proposition at all. In fact, the United States Constitution was dedicated to the proposition that only white males were equal. To a more rudimentary degree, the founding fathers believed that only white property owning men were free. Wills contended that there was no paper Lincoln loved as much as the Declaration of Independence believing, "It would be hard to find any other text, except the Declaration of Independence, which Lincoln used with such familiarity and respect." There is even more proof to this assertion when one compares Lincoln's first and second inaugural addresses. In the first, he spoke of ensuring the existence of slavery where it currently abided:

"I declare that I have no purpose directly or indirectly, to interfere with the institution of slavery where it exists. I believe I have no lawful right to do so, and I have no inclination to do so."

       It appears after his first inaugural speech Lincoln found a "loophole" in American law which would allow him to justify the freedom of slaves. To Lincoln, the Constitution of the United States was the lawgiver which prevented this freedom. The loophole he found was the in United States Declaration of Independence, which would allow the freedom of slaves by stating that: "All men are created equal."
       The mood and tone of his second Inaugural address would change greatly. Shorter, and more romantic, it would talk of, "God's will" to remove slavery contending:

"If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through his appointed time, he now wills to remove, and that he gives to both North and South this terrible war, as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to him?"

       The attitude of the two speeches clearly shows the change in Lincoln's philosophy. He justified the removal of slavery as God's will, though clearly the Constitution gave him no such right whereas the Declaration of Independence did. His second Inaugural address mentions nothing of the Constitution, and clearly refers to the Declaration of Independence which Lincoln believes supports the removal of slavery. He therefore upholds the Declaration of Independence over the Constitution in both the Gettysburg Address and his Second Inaugural Address.
       Some might argue that the United States of America would not exist as we know it today had Lincoln not "abused" the powers of the presidency when he did. Had the Confederacy been victorious, our country might have become a collection of many small countries as is found in Europe. One might contend that the lesser of the two evils, the abuse of power in order to ensure a Union victory, can be justified. In war, the rules are different and often any means is justified to attain victory. Therefore, Lincoln's desire to keep the union together justified his actions even though these actions were technically an abuse of presidential power. It can be argued that he abused the power of the presidency when he suspended the Writ of Habeas Corpus and upheld the Declaration of Independence over the Constitution. It can be just as convincingly argued that he did so for a just cause, as opposed to simply wishing to inflate the power of the executive branch of the government. His actions contributed to the Union victory which ultimately ensured that the United States would remain a collection of independent states, united under one government for ALL its citizens.