After writing that Lincoln “broke the rules in order to reestablish their authority as a system,” I realized that I had not dealt justly with the man. I had had in mind his suspension, on his own authority, of the privilege of the writ of habeas corpus, and I presented him as a kind of tough lawman, someone who breaks a rule now and then for the sake of the greater good. But here is Lincoln’s own understanding of the matter, as he expressed it to Congress in his message of July 4, 1861:
Soon after the first call for militia, it was considered a duty to authorize the Commanding General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus; or, in other words, to arrest, and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it, are questioned; and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course some consideration was given to the questions of power, and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “The privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,” is equivalent to a provision — is a provision — that such privilege may be suspended when, in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power, and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.
The reasoning that precedes “But it was not believed that this question was presented” is the reasoning of a tough lawman. Maybe Lincoln was willing to be a tough lawman if the preservation of the Union required it, or maybe he presents tough-lawman reasoning to make his actions appear the more reasonable by comparison. But if we take him at his word, it is clear he did not think of himself as having “broken the rules.”
Lincoln’s apparent belief that he may do what the Constitution does not literally forbid him to do is consistent with his rejection, in the first inaugural, of the principle of judicial supremacy, a principle nowhere expressed in the Constitution. He did not particularly care whether the courts agreed with him because the Constitution did not expressly require him to care.
The idea that each branch is, by its own lights, the supreme interpreter of the Constitution might seem to entail for the executive, which controls the instruments of power, a terrifying freedom of action. But I think a supreme Supreme Court, implicitly able to invoke through its rulings the exercise of those same instruments, is no less to be feared. Perhaps it is more to be feared, because it is less accountable to the people. The best guarantor of liberty, then as now, is a public jealous of its rights and quick to enforce them through the political process.
Let us note, again, that Lincoln’s great purpose was not to effectuate a policy, nor to execute some particular law, but to reestablish the authority of the entire system of laws. He was no practitioner of administrative creativity in the contemporary style.