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Not likely as bad as Bill O’Reilly’s book, but still…

[ 140 ] July 10, 2012 |

this novel by Stephen L. Carter sounds horrendous.

. . . Carter, now a best-selling novelist, nonfiction author and professor at Yale Law School, has his own shelf of [Lincoln] books (including the [Carl] Sandburg tome, which remains a favorite) about Lincoln, whom he still regards as America’s greatest president. This week, that shelf will get a new addition: “The Impeachment of Abraham Lincoln,” an alternate-history legal thriller in which the president survives the attack at Ford’s Theatre only to face reprisals in Congress for what his political enemies describe as high crimes in his handling of the war: suspending habeas corpus (the principle that someone under arrest can’t be held for long without being brought before a judge), shutting down opposition newspapers and, most ominous of all, conspiring to establish a military government in the District of Columbia.

Perhaps I’m just not a fan of counter-factual historical fiction, but if you’re going to do it, you might as well start with a premise that’s even remotely plausible. I don’t know who exactly Carter has numbered among Lincoln’s “political enemies,” but it was almost universally the case that no one except Confederates and Northern Copperheads groaned for more than a moment about the extra-constitutionality of Lincoln’s policies; whether or not the limited, temporary suspension of habeas rights was a good idea, the fact remains that Congress later gave Lincoln precisely the authority he had sought at the war’s outset. And that Congress — which approved the Habeas Corpus Suspension Act by overwhelming majorities in 1863 — would be succeeded by an even more predominantly Republican assembly following the elections of 1864. This, Carter seems to want his readers to believe, would have been the Congress to initiate impeachment proceedings against a President recuperating from a pistol shot to the head. Weird.

It sounds as if at least a few of Carter’s villains are also drawn from the radical wing of Lincoln’s own party — folks like Benjamin Wade and Henry Davis, whose reconstruction bill Lincoln had pocket-vetoed in the summer of 1864 and who supported the third-party candidacy of John Frémont because they believed Lincoln was insufficiently aggressive along a variety of fronts — but that would make even less sense. About all Lincoln needed to do to bring the dissenters around was to boot Montgomery Blair from the Post Office in September 1864. Though it’s certainly true that many fellow Republicans viewed his preliminary thoughts on Reconstruction to be overly gentle toward the South, it’s also pretty clear that Lincoln was, at the time of his death, well to the left of the party median on crucial issues like black civil rights (including suffrage). The fantasy that Lincoln, had he lived, would have been “generous” and “friendly” toward the South eventually became a staple of Confederate and New South mythology before seeping into the mainstream of Lincoln memory, where it continues to reside. Given the trajectory of his philosophy and policy toward slavery and racial justice, I think it’s more likely that Lincoln would have followed a course similar to Ulysses S. Grant, whose rather quickly gave up his naive faith that Southern whites would acquiesce to the postwar order. By 1870, he was using the newly-created Department of Justice to chase down the Klan in South Carolina, and I’m sure Lincoln would have been cheering him along. (It sounds as if Carter in fact understands this about Lincoln, but it also doesn’t sound like this keeps him from imagining that the radicals would have hated him anyway.)

Likewise, the image of Lincoln as a solitary figure, a voice of nobility and unappreciated bipartisan reason surrounded by idiots, purchased men and conspirators, is also boring and absurd. Lincoln was an ingenious politician who had been a devoted Whig and a devoted Republican, and he valued unity enough that I can’t imagine a scenario in which he’d lose influence over the various factions within his own party. But for some reason, Americans have always loved Sad Lincoln, eating a sandwich on a lonely park bench, abandoned by everyone but a grateful posterity. Carter’s novel seems to be animated by this same narrative, which (like Gentle Lincoln) also has its roots in early-20th century reconciliationist bullshit, which had everything to do with pretending that the war had nothing to do with emancipating black people and redrafting the terms of citizenship in a world without slaves. By surrounding Lincoln with enemies of every party affiliation and every ideological orientation, Americans allowed themselves to pretend that everyone but Lincoln — and certainly not the slave-holding and slavery-supporting South alone — shared blame for the war. Perversely enough, Lincoln memory eventually became an alibi for national amnesia about the war’s origins, costs and consequences.

Now, I obviously have no idea whether Carter’s portrayal of Lincoln is as bad as I’m imagining it is. (I recently finished an essay on Lincoln in the imagination of Southern white supremacists like Thomas Dixon, so I’m certain that I’ve read worse.) But he seems to be relying on some pretty obvious, durable cliches about Lincoln, which makes me think the book doesn’t deserve the attention it’s receiving this week. Then again, since Lincoln in literature is apparently my thing now, I suppose I’ll have to read it and find out. If I’m wrong, you’ll hear back from me in, like, six months. Or whatever.

Comments (140)

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  1. joe from Lowell says:

    You don’t think there is any truth to the view that Lincoln stood out among Unionist/Republican stalwarts as particularly concerned with reconciliation and uninterested in punishing treason?

    Not even compared to the war’s military leadership?

    • davenoon says:

      No, there’s certainly some truth to it. The Second Inaugural address, or the plan he allowed to take root in Louisiana certainly offer rhetorical and policy-based support for the image. But I think that aspect of Lincoln’s approach to the war’s end can be (and has been) greatly exaggerated because he didn’t survive to watch the re-brutalization of black life throughout 1865-66 and beyond.

      • joe from Lowell says:

        Makes sense.

        I had no idea that the Confederate myth had adopted kindly Lincoln as a storyline at one time. I’ve only ever seen him with the devil’s head.

        • Hogan says:

          Oh my yes. It’s a plot point in Thomas Dixon’s Klan trilogy (the basis for Birth of a Nation):

          The President issued his proclamation announcing the method of restoring the Union as it had been handed to him from the martyred Lincoln, and endorsed unanimously by Lincoln’s Cabinet. This plan was simple, broad and statesmanlike, and its spirit breathed Fraternity and Union with malice toward none and charity toward all. It declared what Lincoln had always taught, that the Union was indestructible, that the rebellious states had now only to repudiate Secession, abolish slavery, and resume their positions in the Union, to preserve which so many lives had been sacrificed.

          The people of North Carolina accepted this plan in good faith. They elected a Legislature composed of the noblest men of the state, and chose an old Union man, Andrew Macon, Governor.

          See also chapter 2 of The Clansman, which reminds us that Lincoln was really a Southerner (born in Kentucky of Virginia parents).

    • John says:

      Even if we assume Lincoln was considerably more conciliation-minded than the Radical Republicans, he was also much less racist and much more concerned about the rights of the Freedmen than Andrew Johnson was.

      And as the leader of the Republican Party, he was much more concerned about maintaining the unity of that party than Johnson was.

      I think the most important thing to remember about the Johnson years is that Johnson didn’t lose control of reconstruction policy and then get impeached because the Radical Republicans thought he wasn’t going far enough. He lost control of reconstruction policy and then got impeached because moderate Republicans thought (correctly) that he was coddling the south and allowing massive injustice to be perpetrated against the freedmen.

      I’m sure things would have gone differently if Lincoln had not been assassinated, but it’s very difficult to see him alienating his party to the extent that an impeachment became plausible. Lincoln had shown a pronounced ability to control the Radicals, and I don’t see why that would have changed after the war ended.

      • Murc says:

        I think that maybe Johnson refusing to enforce the law had something to do with his impeachment. If he’d at least pretended to take the Tenure of Office Act seriously articles would likely have never been brought.

        • John says:

          The Tenure of Office Act was unconstitutional. I have a hard time faulting Johnson for refusing to obey it.

          • StevenAttewell says:

            The Tenure in Office Act only existed because Johnson was trying to undermine the execution of Reconstruction laws he disagreed with, and one of his favorite tactics was to fire the people whose job it was to implement those laws on the ground.

    • It’s a truth, but not the only truth. A big part of Eric Foner, David Blight, and others’ work has been to point out that Lincoln was equally concerned with the abolition of slavery, the creation of the Freeman’s Bureau, and the idea that at least some black people should vote – as John notes below.

      What we don’t know is how Lincoln would have responded to events in 1865-6 that he wasn’t alive for when those two disparate ambitions clashed. But we can’t assume that Lincoln would have accepted the Black Codes just because he accepted the Lincoln governments.

    • Warren Terra says:

      Sure, with caveats. But if you’ll notice, the novel apparently has Lincoln impeached for going too far in prosecuting the war; the Radical Republicans were (admirably in my view) hardly of the mind that going too far to defeat the South and to destroy The Peculiar Institution were possible, let alone likely to impeach Lincoln for doing so. There is a reason people love the famous letter to McLellan about how since he seems not to be using his army, would he mind if Lincoln borrowed it.

      A more interesting alternate-history would have had McLellan win the 1864 election (somehow) and be impeached for being too soft on a prostrate South. Or you could concoct a scenario in which Lincoln is assassinated and his Vice President succeeds him in office and then is seen as too soft on the South …

      • Craigo says:

        I’ll accept those caveats. I’m not defending the book, which I obviously havent read, just disputing Dave’s characterization of the political atmosphere. Impeachment was a possibility had Lincoln lived, but not a likelihood, and probably not the way Carter posits it happening.

      • joe from Lowell says:

        But if you’ll notice, the novel apparently has Lincoln impeached for going too far in prosecuting the war

        Well, no. The charges laid against him in the book – suspending habeas corpus…, shutting down opposition newspapers and, most ominous of all, conspiring to establish a military government in the District of Columbia – are all domestic wartime policy, applying in the Union itself. None of them deal with how far to go against the South, militarily or even politically. So, I don’t see radical Republicans’ position on that front necessarily obviating criticism over what Carter calls “executive power” from that same quarter.

        Then again, I don’t see any particular reason to believe that they would take up that cause at that time. I think Carter is using the mechanism of the counter-factual to frame a treatment of the issue of executive power, which I hear has been on the national newscasts a few times lately.

        • ploeg says:

          The charges laid against him in the book – suspending habeas corpus, shutting down opposition newspapers and, most ominous of all, conspiring to establish a military government in the District of Columbia – are all domestic wartime policy, applying in the Union itself.

          A false distinction. If unionists held any common belief whatsoever, unionists believed that the southern states were part of the Union, regardless of what the governments of said states said. Granting that different measures are justifiable inside a war zone than outside a war zone, practically all said violations occurred within spitting distance of a war zone.

          • joe from Lowell says:

            A false distinction.

            For real? You’re saying that what the government does to the enemy during wartime, vs. what it does to its own citizens, is a “false distinction?”

            Hokay.

            If unionists held any common belief whatsoever, unionists believed that the southern states were part of the Union, regardless of what the governments of said states said.

            They also believed that the Confederates were traitors who could rightly be shot at by the military. Think for a second about what you’re arguing here: you’re saying that the Republicans and unionists in general didn’t draw a distinction between how rebel military units and leaders should be treated, vs. how loyal citizens in the Union should be treated.

            • joe from Lowell says:

              Why did the Republicans actually impeach Johnson for “conspiring to establish a military government in the District of Columbia,” ploeg? The Union established military governments throughout the South – for instance, Bengjamin Butler’s in New Orleans – without there being the slightest push-back from the very people who issued articles of impeachment over Johnson (allegedly) trying to do the same thing in Union territory.

              Clearly, they saw the distinction.

              • ploeg says:

                I don’t know where you get the idea that the Republicans impeached Johnson for “conspiring to establish a military government in the District of Columbia,” or that Johnson ever did so or intended to do so. But then again, I’m not aware that the District of Columbia was threatened militarily while Johnson was president, so war powers would not have protected Johnson as they would have protected Lincoln.

                • joe from Lowell says:

                  I don’t know where you get the idea that the Republicans impeached Johnson for “conspiring to establish a military government in the District of Columbia,”

                  I’m equating the charges in the articles of impeachment, particularly #s 5 and 6, with how the military governments established by the Union operated. You’re saying that the impeachers saw no difference between how the government operated in Union territory and how it operated in Confederate territory; I’m pointing out that doing similar things (actually, much more restrained things) in Washington DC got you impeached, while doing them (or much worse) in Confederate cities got you military commendations.

              • joe from Lowell says:

                But what about the actual point?

                Do you really mean to stick with the argument that what the government did to prosecute the war in Confederate territory vs. what it did in governing the Union itself, is a “false distinction?” And that the Republicans during and after the Civil War saw it as such?

                • ploeg says:

                  The valid distinction is whether you are in danger of having people shoot at you, not whether you are in a “Union state” vs. a “Confederate state”. Distinctions between “Union states” and “Confederate states” were recognized only insofar as it allowed the Unionists to pass the 13th, 14th, and 15th amendments before readmitting the “Confederate states” into the Union and for administering Reconstruction.

                • joe from Lowell says:

                  No, the valid distinction is between how the government treats its people vs. how it treats the wartime enemy.

                  Even in areas of the United States that are “threatened,” the government does not act towards the people there the way it behaves towards the enemy.

                  Distinctions between “Union states” and “Confederate states” were recognized only insofar as it allowed the Unionists to pass the 13th, 14th, and 15th amendments before readmitting the “Confederate states” into the Union and for administering Reconstruction.

                  Ah, right, I must have forgotten the episode in which Sheman burned Providence.

            • ploeg says:

              War powers can be used in areas that are under military threat, not merely in areas that are nominally “enemy territory”. These areas included states like Maryland and Missouri. There were commanders who exceeded their authority elsewhere, but such issues were resolved in the fullness of time.

              I also note that there were large numbers of loyal Unionists deep in the south (particularly in eastern Tennessee, western Virginia, and parts of Alabama). The use of war powers in those areas was still applicable insofar as danger existed.

              • joe from Lowell says:

                War powers can be used in areas that are under military threat, not merely in areas that are nominally “enemy territory”.

                Sure they can. And which “war powers” are appropriately used in ones own territory, in the governing of one’s own citizens, and which are not, is the sort of question that might result in a rather spirited disagreement – one that could even lead to political crisis.

                I find the differences between the bombings before the Normandy landings, and the presence of air-raid wardens telling people to pull down their shades, to be quite easy to recognize. What’s more, I find it quite easy to understand that someone who takes the sort of “war powers” one uses in a military theater, and brings them back to the United States, could end up getting in some hot water for that.

                You don’t?

                • ploeg says:

                  Certainly bombings and air-raid wardens spring instantly to mind when one thinks of the American Civil War, but let’s turn our attention to something that actually happened: armed mobs who destroy rail lines and threaten the speedy passage of troops through a city to the nation’s capital. It would seem to be a valid application of war powers to do what is necessary to prevent such things from happening. We can certainly debate what is appropriate and what is not in a particular situation, but just as certainly something extraordinary had to be done, and most will give the benefit of the doubt in such cases.

                  To reiterate, the entirety of the Confederate States was “Union territory,” otherwise the war would not have been fought. And Unionists in Knoxville were just as much our people as Unionists in Providence. And war powers depend on the threat of danger and not simply whether you’re on “enemy territory” or not. Beyond that, I’m afraid I cannot help you.

                • IM says:

                  We do talk about a civil war, after all. Was the difference between Maryland and Virginia really that clear in early 1861? And enemy citizens in Virginia – a secession that wasn’t recognized after all – and own citizens in West Virginia that clear?

                  Some of the habeas cases around the time of Merryman involved members of the state militia of Maryland. Own citizens or members of enemy military units?

          • John says:

            I’m fairly certain that, in fact, the question of whether secession was a legal reality or not was a major one dividing the radical Republicans from moderates and unionist Democrats. The moderate theory, espoused by Lincoln, was indeed that there was no such thing as secession, and that the – Confederates were traitors as individuals. The radical position was that the states themselves were traitors, and would have to, among other things, apply for readmission to the union.

            In Lincoln’s view, then, the rebel states were still states, and their citizens were still entitled to the rights of U.S. citizens. In the radical view, the rebel states were conquered territories in which the federal government could more or less do as it pleased.

        • Anderson says:

          Charitably, if the novel features impeachment on those charges, then they must be a front for whatever was really pissing off the impeachers.

  2. FMguru says:

    “Lincoln was actually a tyrant, you know – habeaus corpus and all that” is one of the durable foundation stones of neo-confederalism (here’s a good example of the form), so this just more of the same. The SHOCKING truth about the “Great Emacipator” that THEY don’t want you to know about etc. etc.

  3. JMG says:

    Mr. Noon, I wish to congratulate you on the term “Sad Lincoln.” Perfect description of an historical image.
    BTW, Lincoln also had something Johnson did not, the veneration of what was in 1865 the world’s largest army and its leadership. A considerable political tool that Lincoln would not have eschewed using in a pinch.

  4. God help us if it gets a sequel.

    This week, that shelf will get a new addition: “The Impeachment of Franklin Delano Roosevelt,” an alternate-history legal thriller in which the president survives his health scare in Warm Springs, Georgia, only to face an investigation into whether he knew anything about Pearl Harbor in advance, whether he knowingly violated the Neutrality Act, and whether he betrayed America by not demanding that the Japanese Emperor step down.

    Going by this precedent, Harry Truman and Alben Barkley will be the primary antagonists, though they might as well randomly throw Burton Wheeler in there too as a bad guy, just like Philip Roth did.

    Probably about as realistic as this thing.

  5. Egad says:

    The horrors emanating from Yale Law School will not stop. Although I’d still probably prefer reading this than anything Carter writes about the law.

  6. Joe says:

    high crimes in his handling of the war: suspending habeas corpus (the principle that someone under arrest can’t be held for long without being brought before a judge)

    Since Congress itself voted to suspend h/c and the Ex Parte Milligan case was in part about its own actions, it is going go after Lincoln for this is unclear esp. from the side who think he was allegedly “too soft.”

    shutting down opposition newspapers

    This troubled a few people but especially in the 19th Century legal landscape in the midst of the war, this is not a fruitful grounds of impeachment

    and, most ominous of all, conspiring to establish a military government in the District of Columbia.

    I don’t know quite what they are talking about. Again, this isn’t a Voyagers t.v. show where the South won and Lincoln was in custody of the Confederates. It is the Radicals, apparently, who are against him. Why would THEY of all people raise these claims?

    Also, from Amazon:

    twenty-one-year-old Abigail Canner is a young black woman with a degree from Oberlin, a letter of employment from the law firm that has undertaken Lincoln’s defense, and the iron-strong conviction, learned from her late mother, that “whatever limitations society might place on ordinary negroes, they would never apply to her.”

    Well, sure, that’s obligatory.

  7. Sherm says:

    I thought Philip Roth did a good job with this genre in Plot Against America, but that was a more a novel set in an alternative history than a fictional piece of non-fiction as this sounds.

    • Murc says:

      I thought Philip Roth did a good job with this genre in Plot Against America,

      No. No, he did not.

      • Lee says:

        The Plot Against America failed on many levels even though it was a sort of exciting read. Roth’s main problems was that he couldn’t quite grasp the fact that once you change something in the past than the entire future changes. The narrator refers to the assasination of Robert Kennedy still occuring even though American politics and history should be completely different after the events of the novel.

        • Sherm says:

          Yeah, I thought it was a fun read, but it was not really about the alternative history and resulting world events. It was more about the impact the alternative history would have had on Roth’s characters, and I would therefore give him a pass on such matters.

        • John says:

          Just because everything else changed doesn’t mean it’s impossible that Robert Kennedy would still have been assassinated in the alternate timeline.

          • LeeEsq says:

            This is true but the way I read the Plot Against America, apparently everything goes back to normal at the end of WWII. I find this scenario rather implausible. By the end of the Plot Against America, the GOP should have gone the way of the Federalists and Wigs even in our two party system. This would give the Democratic Party a monopoly on politics till a new oppositional party can organize and get their stuff together. This would mean that different rooster of politicians dominate in the 1940s and 1950s. The Kennedy family might never rise to prominence.

            • IM says:

              The whole everything happened the same, just one year later was weak. the description of pre war New Yersey and the jewish community, especially the father ofRoth was fascinating.

              As for the potential fate of the republicans the democrats survived the civil war too and in the book some republicans, I think especially Leverett Saltonstall and La Guardia oppose Lindbergh.

              • Lee says:

                Yes but after the Civil War, the Democratic Party was basically out of power on the federal level for generations with Cleveland and Wilson has exceptions. Thats sixteen out of seven one years between the outbreak of the Civil War and FDR’s election.

                The GOP might survive but they won’t be near the Presidency anytime soon. Plus Roth described the GOP defeat as cataclysmic with only a few Republicans in Congress.

  8. Quicksand says:

    Yeah, I’m gonna go with the vampire-slaying alternate history over this one.

    Not even close.

  9. Scott Lemieux says:

    In the sequel, they’ll still impeach Andrew Johnson…

  10. rea says:

    While I can imagine scenarios where the radicals of his own party impeach Lincoln, I can’t imagine one where they do so for suspending habeus corpus–the radicals would have been more inclined to impeach him for not suspending habeus corpus.

    The Republicans didn’t master this degree of hypocrisy until the 21st Century.

  11. Craigo says:

    Your account of Lincoln’s suspension of habeas corpus is not accurate. In particular, the act of 1863 did not provide any retroactive legal justification for his actions in 1861-182 – in fact, the Senate had rejected a bill which would have done exactly that. It did give him the power to do that moving forward (with stricter due proces requirements) but this is not what you are suggesting.

    • Craigo says:

      To be clear – arguing that the act of 1863 gave him the authority that he had sought at the outset implicitly admits that he lacked the authority before the act. The suspensions of 1861-1862 were clearly unlawful, and would have easily provided a casus belli for Lincoln’s political opposition.

      While we’re at it: The idea that the Radicals suddenly got onboard with the Lincoln program in Sept. 1864 is simply absurd. See Foner, Reconstruction and Forever Free, McPherson, Battle Cry of Freedom, Nevins, Ordeal of the Union. It was not an view shared by Potter or Gienapp, and even Troufousse, who is as sympathetic to the Radicals as any historian and quick to emphasize their wartime partnership with Lincoln, did not necessarily believe that the relationship would have continued beyond the rebellion.

      I don’t disagree that impeachment was not likely, given that Lincoln was a much better politician and much closer to the Republican mean than Johnson, but the raw material for such an event was clearly there.

      • John says:

        Even if Lincoln alienates the radicals, that doesn’t provide the basis for impeachment. For impeachment to happen, Lincoln has to alienate the moderates as well.

        • Craigo says:

          If he has alienated the Radicals, then he he need only alienate the Democrats, which he does by virtue of not being a Democrat.

          Still not likely. After all, Lincoln is not Johnson. He would not have issued nearly as many vetoes – the Freedmen’s Bureau, or the Civil Rights Act of 1866 . And his progressive wartime trajectory could easily see him moving towards support of the 14th Amendment, though he was not supportive of such policies at the time of his death. So his relationship with the Radicals, though rocky, would not have been nearly as tendentious as Johnson’s. And after all, JOhnson himself is waiting in the wings.

          • John says:

            There were, in the 39th and 40th Congresses, many more moderate Republicans than Democrats of any stripe (and not all the Democrats in Congress were copperhead confederate sympathizers who would have jumped at any opportunity to impeach Lincoln).

            Part of the reason the Republicans went ahead with impeachment was because they had a two thirds majority in the Senate. A radical/Democrat alliance of convenience would not have had those numbers.

            Furthermore, recall that if Johnson had been removed from office, radical Senator Ben Wade of Ohio would have succeeded him as president. If Lincoln is removed from office, Johnson becomes president. An attractive prospect for the Democrats, perhaps, but not for the Radicals.

            • IM says:

              In the Carter novel Johnson is killed. In real life Lincoln was killed and the assassination attempts on everybody else failed. In the novel it seems to be the other way round.

              There is still the problem: If wade would be president in the novel too, why should democrats and moderate republicans go along?

      • davenoon says:

        I should have written “precisely the kind of authority he sought,” because that’s in fact what I was trying to convey. I understand the confusion.

        And no, I didn’t mean to imply that the radicals fell entirely under Lincoln’s sway after Blair’s firing/resignation — just that they gave up on Fremont’s candidacy. I don’t think his relationship with the radicals would have been pleasant, but it’s a long way from there to arguing that “the raw materials” were there for an actual impeachment

        • Craigo says:

          OK, I see what you mean. I still disagree with impeachment being an impossibility – but it would have required Lincoln to screw up in ways that you wouldn’t predict given his previous actions.

          He would, as a moderate, have been in the very weird of position of having a Radical bloc fundamentally opposed to his reconstruction policies for being too conservative, and a Copperhead/southern bloc opposed to the same for being too progressive. Together the two would have a healthy majority in Congress after 1864, but it’s harder to see how Lincoln could have united them against him.

        • Erik Loomis says:

          Christ, a Fremont presidency would have been a disaster.

    • rea says:

      But of course, the Constitution specifies that habeus corpus can be suspended during a rebellion, and does not say who has the power to suspend it. Nowdays we have precedent saying that it is Congress that has the power, but that precedent didn’t exist when Lincoln did it.

      • Craigo says:

        Aside from the fact that it’s listed in Article I?

        • rea says:

          A very weak argument, based simply on structure and not on language. If anything, the negative form of the language about habeus corpus suggests the opposite–clearly the drafters of the Constitution did not intend that language prohibiting suspension of habeus corpus to apply only to Congress, and if they did, it was okay for Lincoln to suspend it.

          • rea says:

            Also, Art I Sec 9 also states, along with the bit about habeus corpus, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” Does that only apply to Congress? But it’s in Art I!

          • Craigo says:

            The Supreme Court has consistently disagreed that it is weak. Also, every single suspension since has been previously authorized by Congressional action.

            • rea says:

              The Supreme Court has consistently disagreed that it is weak.

              No, the Supreme Court said nothing at all about whether it was weak or strong. It’s a weak argument, that was nevertheless adopted by the Supreme Court for political and policy reasons. The issue of who gets to suspend habeus corpus was not clearly anwered by the Constitution, and yet, had to be answered. The Supreme Court wasn’t wrong–but that doesn’t make Lincoln’s actions retroactively tyrannical.

              • Craigo says:

                I dont’t understand what sort of argument you’re trying to make. The Supreme Court and Congress agreed that the suspensions were unlawful, but you say they’re not really unlawful because the decisions were “political.”

                Where have I heard that argument recently?

                • rea says:

                  Where have I heard that argument recently?
                  Which argument–the one I’m making or the one the voices in your head have persuaded you I am making?

                • IM says:

                  But:

                  ex parte merryman is not a Supreme Court decision

                  and ex parte milligan actually dodges the question if the pre Habeas Corpus Suspension Act suspensions of Lincoln were legal. Milligan rules on a case baseed already on the act.

                  And the circuit court in Merryman was indeed Taney.

      • rea says:

        In short, as I should have said plainly, “The suspensions of 1861-1862 were clearly unlawful,” is pure nonsense. How you get that from, “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 a mystery.

        • Craigo says:

          Because it’s a congressional power, as federal legislation (the Habeas Corpus Suspension Act cited by Dave) and case law (Ex parte Merryman, Ex parte Milligan )

          Note also that Lincoln originally justified his limited suspension of habeas corpus in states and counties in rebellion by noting that the civilian courts were no longer functioning. This reasoning went out the window when he suspended the writ nationwide in Septemeber 1862. Maryland, Missouri, and Kentucky I can buy, but do you want to argue that such hotbeds of secessionist as Massachusetts, New Jersey, Indiana, and Wisconsin were in rebellion?

          • rea says:

            You say it’s a congressional power, and rely on authorities postdating Lincoln’s actions to prove tht Lincoln must have understood that it was a congressional power. Vampire hunter he may have been, but assuming he had a time-machine goes too far.

            And as for Wisconsin, etc., habeus corpus was suspended on that occasion in response to organized resistance to calling up the militia for national service, which was a problem everywhere.

            • Craigo says:

              Whether Lincoln understands that it’s a congressional power is irrelevant. I don’t know why you think that’s important. The legiality of one’s actions do not depend on your subjective interpretations of the law.

              What is clear that the Supreme Court and Congress understood it to be a Congressional power, and knew that his actions in 1861-1862 were unlawful. As have every Supreme Court and Congress since.

              • rea says:

                Craigo, you are trying to portray Lincoln as a wrongdoer who deliberately violated the Constitution, which is why it matters that the constitutionality of what he did was unsettled when he did it.

                • Craigo says:

                  Full disclosure: Lincoln is, by far, my favorite President, and he one man I would choose to meet from history if given the chance.

                  But that’s no reason to view his every action through rose-tinted glasses. In England, only Parliament could suspend habeas corpus. Edmund Randolph called it a Congressional power during the convention, and Alexander Hamilton, as a warm a friend of Presidential power as you will ever find, agreed. John Marshall assumed it to be so, as did Joseph Story in his commentary, which during Lincoln’s time was second only to Blackstone. (The Commentaries are clear on this point as well – suspension is a legislative, not executive, power. And Lincold had damned well read Blackstone.)

                  If it was unsettled, there would not have been such an uproar in Congress. Which would not have rejected several attempts to retroactively legalize Lincoln’s actions, but merely authorized him, subsequent to enactment, pursuant to its own powes.

                  He did what he thought was necessary. But that does not make it legal.

  12. ChristianPinko says:

    If it doesn’t have Lincoln teaming up with Batman, I don’t want to know.

  13. sven says:

    “It sounds as if at least a few of Carter’s villains are also drawn from the radical wing of Lincoln’s own party”

    Are you sure they are the villains of the piece? I am meeting a surprising number of conservatives (mostly self-identified libertarians) who despise Lincoln.

    • John says:

      Is Carter a wingnut? He apparently clerked for Thurgood Marshall, which suggests not. It’s kind of hard to judge his political views from his non-fiction books – he apparently thinks religion needs to play a greater role in public life and is skeptical about affirmative action, but other remarks suggest relatively liberal politics. His views certainly don’t look hardcore wingnutty. (Also, he’s black, so whatever else he’s almost certainly not going to be a Confederate apologist.)

      • sven says:

        “Is Carter a wingnut?”

        I hope not and from what you have added, it sounds like he probably isn’t. My point was just that an alternate history in which Lincoln is punished for violating the true spirit of the U.S. Constitution might be well-received on the right. Once power was usurped by the federal government, decline was inevitable…

        (The views stated in this comment may not reflect the views of sven, LGM, or your internet service provider)

      • Hogan says:

        I haven’t read his nonfiction, but his fiction has been good enough that I wouldn’t expect this to be as bad as Noon expects.

      • Bobby Thomson says:

        Not a wingnut, but not liberal, either. I think the Broderist description is accurate. He’s generally a pretty boring guy.

        • John says:

          Yeah, Broderist is probably the impression that his non-fiction publications give. That seems good enough to say he’s not a neo-confederate Lincoln hater, though (are there any Black neo-Confederate Lincoln haters?)

      • CJColucci says:

        I lost interest in anything Carter had to say after two things. First, a traumatic experience he recounted in Reflections of an Affirmative Action Baby (basically, he didn’t get a “merit-based” scholarship he sought and was offered what can best be characterized as a “best black” scholarship and got upset over it) had never happened, and his life was, therefore, largely shaped by an experience he didn’t experience. (I accept his claim that he had simply misrembered things, but it’s still odd to be traumatized by something one could not have been mistaken about at the time.) Second, in his book about religion, the title of which I forget and can’t be bothered to google, in trying to show the allegedly parlous state of religion in America, he thought some letters criticizing First Lady Hillary Clinton for wearing a crucifix around her neck while parading in the inaugural parade was more telling than, say, the First Lady wearing a crucifix around her neck while parading in the inaugural parade.

    • IM says:

      I have only read the (good) emperor of ocean park and he seems to be either a moderate republican or democrat and very much a high broderite.

      The father in ocean park starts out as a Nixon appointed moderate conservative judge but is then treated like Bork/Thomas by the evil liberals and then goes full wingnut, riding the wingnut welfare train. That is treated as an character derailment, though.

      • Ocean Park is good to the extent that it chronicles life in among affluent African-American professionals, but its plot is premised on the notion that having a corrupt Court of Appeals judge on payroll would make sense for a criminal enterprise. Experience has shown that in order for that to work the entire judiciary must buy into the ideology of 19th Century capitalism.

  14. Clark says:

    So, how do you feel about Vidal’s Lincoln?

  15. Edward Furey says:

    The Constitution specifically contemplates the suspension of habeas corpus “when in cases of rebellion or invasion the public safety may require it.” Both contingencies applied when Lincoln took office. It’s not specific about who decides when to suspend the writ, but as Justice Jackson said (echoing remarks by Lincoln), the Constitution is not a suicide pact. The notion that Lincoln’s actions, pursuant to specific terms of the Constitution, were unconstitutional is just nonsense.

    • Joe says:

      Scalia/Stevens wasn’t sure about that in Hamdi but you and rea put forth a reasonable position. “Nonsense” is not how I would explain either reading though ‘clearly’ unconstitutional might be closer to it.

    • Craigo says:

      You may take that up with the entire body of Supreme Court case law on this subject. There has been only one President who has suspended the privilege of the writ on his own authority, and his actions were overturned (though he ignored the decision). No opinion since has contemplated a presidential power of suspension.

      The argument you are advancing is that a section of the Constitution dealing with Congressional powers should be read as to granting a presidential power by virtue of not including the word “Congress” in every single sentence. Also, that Edmund Randolph, Alexander Hamilton, John Marshall, and Joseph Story were incorrect. And that the Framers, drawing upon English law and government, decided to grant one man the authority to suspend a right they held dear, knowing full well that in Britain only Parliament held such a power, and that the English had fought a civil war partially over their king’s abuse of that power. And that the Supreme Court, from 1807 to 2006, was consistently misstating the law.

      • rea says:

        The argument you are advancing is that a section of the Constitution dealing with Congressional powers should be read as to granting a presidential power by virtue of not including the word “Congress” in every single sentence.

        No, the Constitution does not explicitly grant anyone the power to suspend habeus corpus–but makes it clear that it can be suspended. Bear in mind, too, that Congress had not been in session at the time.

        Also, that Edmund Randolph, Alexander Hamilton, John Marshall, and Joseph Story were incorrect

        None of those guys was ever presented with the issue in a context that required them to make a decision. Roger Taney (sitting by himself as a habeus judge) rendered a decision in 1861–but you know, one might suspect Roger Taney of having some ulterior motives in this instance.

        • Craigo says:

          No, the Constitution does not explicitly grant anyone the power to suspend habeus corpus–but makes it clear that it can be suspended.

          Okay, find me a Supreme Court opinion backing that up.

          Bear in mind that Congress was not in session at the time.

          Do you know what the Constitution actually authorizes the President to do? Call Congress into session.

          None of those guys was ever presented with the issue in a context that required them to make a decision.

          Are you unfamiliar with the concepts of legislative history and judicial precedent?

          Roger Taney (sitting by himself as a habeus judge) rendered a decision in 1861–but you know, one might suspect Roger Taney of having some ulterior motives in this instance.

          If Taney’s ruling was suspect, why has every Supreme Court since held the same?

          • rea says:

            find me a Supreme Court opinion backing that up

            Jeez, I need a Supreme Court decision to “back up” a claim that the constitution doesn’t mention something?

            Do you know what the Constitution actually authorizes the President to do? Call Congress into session.

            Do you know how long it took Congress to assemble in the 1860s? Not to mention the little problem with rebellion that was slowing travel? Are you aware that conditions in Maryland were such that Lincoln had to sneak into Washington in disguise to get inaugurated?

            Are you unfamiliar with the concepts of legislative history and judicial precedent?

            Are you unfamiliar with the concept of dicta?

            If Taney’s ruling was suspect, why has every Supreme Court since held the same?

            Meaning one, after the war was over? You think that Taney (slaveholder, border stater, author of Dred Scott and a guy who was doing much the same thing hemself that got Merryman arrested) was a neutral magistrate?

            • Craigo says:

              “Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions…Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.”

              O’Connor, joined by Rehnquist, Breyer, and Kennedy.

              “Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily…Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I…It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.

              Scalia, joined by Stevens.

              Hamdi v. Rumsfeld, all citations omitted. I.e., you should actually read the opinion, and the cases they cite. There is not a single Supreme court case holding that the president can suspend the writ without Congressional authorization.

              By the way, every single Justice in Hamdi cited Milligran approvingly. It’s still good law.

          • Edward Furey says:

            There weren’t a lot of cases prior to the civil war because the insurrection provision of the Constitution had not been met. The Congress met in July 1861, about as fast as it could have following the outbreak of the war/insurrection and immediately endorsed Lincoln’s action. Taney’s opinion can only count as precdent if it actually amounted to US Law. Since Lincoln ignored it and the Congress endorsed Lincoln, it carries only a little more weight than a judge holding forth in a bar. Subsequent legislation took up the suspension of habeas corpus, so when Grant and others used suspended it, they were acting in accordance with the Civil Rights and other acts. Plus the actual precedent set by Lincoln. Taney may indeed have preferred that the Constitution be a suicide pact; he did his best to kill the nation.

            • Craigo says:

              As mentioned, Milligani still being cited today. You are simply incorrect.

              Taney’s opinion can only count as precdent if it actually amounted to US Law. Since Lincoln ignored it and the Congress endorsed Lincoln, it carries only a little more weight than a judge holding forth in a bar.

              Yeah, not how judicial review works, chief.

  16. wengler says:

    This whole scenario is wrong. If Lincoln survived his assassination attempt he would’ve resigned. His full dedication would’ve gone toward reviving his vampire hunting skills.

  17. Desert Rat says:

    What I want to know is why Lincoln? I can’t imagine a scenario where Lincoln is inept enough of a politician that he can’t control his party to the point that the bulk of the party wants to throw him out.

    To me, if you want to write alt-timeline fiction with a President, the obvious one is Kennedy not being assassinated. He was already escalating the war in Vietnam. It’s not hard to see a Kennedy, finishing out his term in 1968, having escalated the Vietnam War, not successfully pushed the Civil Rights acts of 1964-66, and ending his second term as a deeply unpopular President.

    • rea says:

      if you want to write alt-timeline fiction with a President

      The one I’ve been contemplating recently involves Richard Montgomery, hero of the capture of Quebec and first President of the United States. How lucky that cannon ball took out Aaron Burr instead . . .

      • witless chum says:

        How about Benedict Arnold gets command of the Southern Army instead of Horatio Gates and decides not to switch sides, smashes the Brits at Camden in 1780? They’d probably have given up just as they did after Yorktown.

        • firefall says:

          That would work for me – Arnold certainly seemed vastly more talented than Gates .. at everything, really.

          • BigHank53 says:

            Not to mention that President Arnold wouldn’t have wasted any time with that false-modesty “Mr. President”, either.

          • rea says:

            Which of course, was the problem. Arnold had literally mutinied, siezed control of the army on the battlefield from Gates, and won at Saratoga, getting seriously wounded in the process. Gates got the credit. But Arnold had serious political problems with Congress dating back well before Saratoga, and Gates was a much better politician.

            It’s hard to think of a simple turning point that has Arnold rather than Gates getting the southern command in 1780. And the result would not have been an American victory at Camden–the result would have been no battle at all–fighting at Camden was folly for the Americans. Instead, you’d get at best a long campaign of attrition like that fought later by Greene.

    • davenoon says:

      I’ve decided to write a series of literary mashups in which I write Richard Nixon into the plots of classic 19th century Russian novels. I’m pretty sure these would be an enormous hit.

    • Lev says:

      No, the obvious one is RFK not getting shot, though usually those books imagine him rather implausibly getting the Democratic nomination and then beating Nixon. Neither of which, I think, was terribly likely.

      Actually, though, I’ve heard of surprisingly little alt-histories of Ted Kennedy winning in 1976. Perhaps because Kennedy was not as universally liked as his brothers, so there’s less of a fantasy about him wielding more power, I don’t know. But that could have made for a very different scenario–a Democratic president who knew Congress, didn’t sabotage himself constantly, and wasn’t mistrusted by half of the party for entirely good reasons. At the very least, we would have gotten a decent health care bill back then.

  18. FlipYrWhig says:

    Joe from Lowell made a move in this direction earlier: this sounds for all the world like “Lincoln” is Obama, getting hammered by disenchanted former comrades for his civil liberties policies.

  19. Matt McKeon says:

    Americans are willing to give their presidents enormous power during wartime. I don’t know if Lincoln’s actions were unconstitutional or not, but they were popular enough. He wouldn’t be impeached for fighting the rebellion, especially since he won.

    • firefall says:

      That was my thinking – the idea that Congress would impeach a president who’d just won a war seems somewhat less likely than them voluntarily giving the USA back to the British monarchy as a possession (however good an idea that might subsequently prove to be)

    • etv13 says:

      And I don’t know about the legal force of an argument that Lincoln was reelected in 1864 by people who knew very well what he’d done in 1861-62, but it sure seems like an effective political one.

  20. burnspbesq says:

    So now we have an anticipatory review of a book that the reviewer freely admits he has not read, by a reviewer who appears to be completely unfamiliar with the author’s previous work.

    How massively stupid is this?

    • witless chum says:

      Not that stupid, because it concerns alternate history, where the general outlines of the plot matter much more so than they do in any other genre. I judge alternate history novels partly by how plausible/interesting I find the alternative history, as well as how well they work as novels.

    • Walt says:

      It’s alternative history. You’re allowed to have an opinion on whether the premise of the book is too implausible to want to read. Lincoln getting impeached under those circumstances is such an implausible scenario that it’s hard to see past the visible hand of authorial intervention.

  21. Sly says:

    It sounds as if at least a few of Carter’s villains are also drawn from the radical wing of Lincoln’s own party — folks like Benjamin Wade and Henry Davis, whose reconstruction bill Lincoln had pocket-vetoed in the summer of 1864 and who supported the third-party candidacy of John Frémont because they believed Lincoln was insufficiently aggressive along a variety of fronts — but that would make even less sense. About all Lincoln needed to do to bring the dissenters around was to boot Montgomery Blair from the Post Office in September 1864.

    And he only needed to do that because the Anti-Lincoln Radicals had conducted a rather effective campaign of self-marginalization during the summer of 1864. It wasn’t just that Lincoln wasn’t aggressive enough; even prominent radicals like Thaddeus Stevens believed that Lincoln pocketed Wade-Davis so that the executive branch would be in charge of setting up reconstruction governments in the rebel states and automatically cast their electors for Lincoln in the upcoming election. They saturated Republican newspapers with tirades against Lincoln the tyrant, resulting in a backlash from moderates (costing Henry Winter Davis, and perhaps others, his renomination).

    I think its reasonable to assume that the Radicals demanded Blair’s resignation as a condition of suspending Fremont’s campaign as a way to save face. By September, they knew Lincoln was going to win in a landslide anyway and that continuing to campaign against him was costing them far more than they had to gain, so they might as well get a scalp and claim a small victory.

    And, yes, the notion that Lincoln would be in any position to be threatened with impeachment during a full second term is pretty laughable. He was a good politician in his own right, and a great politician compared to his inept rivals.

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