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I’m not especially well-informed about the history of the Catholic Church, the Reformation, and the Counterreformation. I therefore simply direct readers to an interesting set of posts by Mick Arran:

• Open Letter to Barack and Nancy: Why “Moving On” Is a Recipe for Disaster (1)
• Open Letter (2): The Catholic Church and the Danger of Irresolution
• Open Letter (3): Nixon, Reagan, and the Church

Arran argues that there are instructive historical parallels between the great shipwreck of the Catholic Church on the rocks of the Reformation and today’s American political scene. In a nutshell, by failing to root out and punish corruption in its midst, the American political establishment of the late 20th and early 21st centuries strongly resembles the pre-Reformation Catholic Church, and is inviting a similar period of steady decline.

Arran points to Ford’s pardon of Nixon for and Bush’s pardon of Weinberger as akin to the Catholic Church “General Council” failures to end abuses like selling “benefices” and self-enrichment:

…not once, but twice, American presidential administrations have defamed and trampled on some of the most serious and solemn provisions of the Constitution of the United States WITHOUT LEGAL CONSEQUENCES OF ANY KIND FOR ANYONE INVOLVED. But most especially there was no action whatever taken against those at the top levels of govt who had ordered those violations: the president and the vice president. Is it any wonder that the Bush Administration felt free to do whatever it wished, to violate US law, the Constitution, and Congressional orders lawfully given? To do its business entirely in secret, refusing even to let the Congress itself know what it was doing? The lesson they had learned and learned well was that a president could ignore laws, the Constitution, Congress, the judicial branch, and the people themselves WITHOUT FEAR THAT THEY WOULD EVER HAVE TO PAY A PRICE FOR THEIR CRIMES.

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Crane operator at TVA’s Douglas Dam, Tennessee (LOC)
Photo by Alfred T. Palmer, 1942
Originally uploaded by The Library of Congress

The Library of Congress has put up about 3000 photographs at the online site Flickr.com. About two thousand of them are from the 1930s and 1940s — in color! The pictures were or the Farm Security Administration and/or the Office of War Information, often by some of the great photographers of the day, including John Vachon, Jack Delano, Alfred T. Palmer, and Marion Post Wolcott. The rest are photos for the Bain News Service taken between 1910 and 1912.

Suffragettes posting bills (LOC) (ca. 1911)
Originally uploaded by The Library of Congress

What’s really nice is that the photos are searchable by tags like “plane,” “suffrage,” or tennessee,” and that the results can be viewed as a slideshow (click the links).

Rural school children, San Augustine County, Texas (LOC)
Photo by John Vachon, 1943.
Originally uploaded by The Library of Congress

To just start at the top, click here; for a slideshow view of all of the photos, click here, then sit back and watch the show. I’ve been looking through them all evening.

It doesn’t surprise me that Jim Henley’s defense of Ron Paul’s assertion (“Lincoln should never have gone to war; there were better ways of getting rid of slavery” — ) is more interesting than Paul’s own — partly, of course, because the latter was abridged by the format of a Sunday news soundbite show, but mainly because I think Henley is a more capable essayist and thinker than Paul.

Henley’s title — “A Fiery Gospel Writ in Burnished Rows of Steel” — is a quote, of course, from Julia Ward Howe’s Battle Hymn of the Republic, and I think Henley has a point if he wishes that our republic didn’t have “battle hymns,” and that our political culture didn’t confuse wars and hegemony with national purpose — rather than simply seeing that purpose as protecting the liberties of all its citizens. There’s not enough “constitutional patriotism” in the United States these days, and too much “military history patriotism” that seems to make blood sacrifice the point of our history.

Nevertheless, I think Henley’s argument in this post is as wrong as Ron Paul’s, and I’ll try to explain why. Others — see particularly Ari Kelman (”The Edge of the West”) — have rehearsed the events preceding the outbreak of the Civil War at some length, so that need not be recapitulated here, other than the fairly important points that (1) Lincoln was duly elected, (2) his platform merely sought to limit the spread of slavery, and (3) that the Confederacy fired the first shot at Fort Sumter.

For his part, Henley begins his argument as a rejoinder to this comment by Matthew Yglesias on the matter:

The South … decided that rather than abide by the results of the election, they would secede from the country and establish a new herrenvolk democracy committed to slavery uber alles. They, not Lincoln, put resolution of the slavery issue through the political process out of reach.

Henley replies this is only partly correct:

Rather, they put the resolution of slavery through a peaceful political process of “The United States of America” out of reach, because they decided not to be in it any more. There are all kinds of bad things that might have attended the North letting the South go - one possibility is decades worth of border wars in the western territories as the USA and CSA tried to expand at each other’s expense. Imagine a “bleeding Kansas” stretching from the Great Plains to the Pacific Ocean. That might have happened. And Saddam Hussein might have decided to underwrite a biological terror strike on Chicago. Or, maybe not! But the bad possible alternatives are distinct from “American slavery lasts forever.”

And with this, the gambit is more or less complete, with both Henley (and Paul) adding the final move of positing the inevitable end of slavery within a few decades, based on Russia’s and Brazil’s emancipations and various stratagems for undermining the CSA (buying slaves in border states, assisting fugitive slaves, homesteading the freedmen in the USA Western territories, etc.) Like Ron Paul, Henley frames his Civil War analysis as one about the wisdom or morality of the Civil War as a method of ending slavery.

But that wasn’t what it began as: a war for preserving a particular democracy in a particular time and place. That is, there was actually an even more fundamental issue than the particular one of slavery at stake: whether deeply divisive issues such as slavery could be settled by unilateral secession. A United States that allowed itself to be dissolved and fired upon — especially if the dissolution and violence were because of the outcome of an election — is one that would have had no convincing legal answer to further secessions later on, as diminishing centripetal forces of scale and allegiance were outweighed by the centrifugal ones of local advantages via location and alliances.

Henley’s arguments about the war also ignore that peaceful, constitutional mechanisms for achieving disunion were readily available — and were proposed by Lincoln himself in his First Inaugural address:

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it, or their revolutionary right* to dismember or overthrow it. I cannot be ignorant of the fact that many worthy and patriotic citizens are desirous of having the national Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it.

I will venture to add that to me the Convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions, originated by others, not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse.

Henley and Paul are right to be horrified at the cost of the Civil War; they may even be right to suggest that if ending slavery — or washing one’s hands of it — was all it was about, the Civil War was not the only or necessarily the best option. (Though I shall argue that’s a somewhat surprising position for them to take.) But any nation “so conceived and so dedicated” as the United States would have had to make the same decision to resist secession, or accept crumbling into its constituent parts. Lincoln, as usual, said it best, both in his First Inaugural address…

If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side or the other. If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments, are now being educated to the exact temper of doing this.

…and in the famed heartbreaking words of his Second Inaugural address:

Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came.

Henley also makes a somewhat unexpected argument when he posits the “the near certitude that American chattel slavery as such would end within the generation that saw 1865″ — and then writes: “Would the lives of American blacks by 1890 have been better than the lives of American blacks in the 1890 we actually had? I think it’s very likely.”

Even accepting arguendo that blacks would indeed have been emancipated everywhere in North America by 1890,** that’s still a remarkable bargain to make: the basic freedom of millions for “very likely” a generation (but possibly longer) to prevent the battlefield deaths of hundreds of thousands (but “likely” fewer, to recall the beliefs on both sides at the outset of the conflict). Say what you will about the Civil War, but even as waged it was a far quicker and surer route to emancipation than anything Henley imagines — even if that wasn’t the original intent.

And that’s a benefit I’d have thought worth its weight in gold to libertarians like Ron Paul or Henley. Henley, at least, often and rightly rejects the infringement of a single person’s human rights for the sake of unspecified, unproven national security benefits, as reckoned in American lives purportedly saved or guarded. It seems inconsistent to reverse that calculus for our forebears — even if the argument somehow nibbles at the origins of the modern American nation state.

I think the relationship of ending slavery to the Civil War is much as Lincoln described it in his Second Inaugural:

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease.

That is, ending slavery was not the first object of Lincoln and the United States in The War of the Rebellion, as it is referred to in United States records. Rather, that object was simply but forcefully to insist that we had a deal: our Constitution foresaw some ways of resolving political conflict, but not others. Nevertheless, slavery was the root cause of that political conflict and that war, and slavery’s demise quickly (and foreseeably) became a corollary of ending the war on terms favorable to the Constitution and its Union.

Thus Henley (and Ron Paul) mislead themselves and others by arguing ending slavery was insufficient grounds for resisting secession. No: slavery’s preemptive defense was insufficient grounds — nay, evil and repugnant grounds — for proceeding with secession from this Constitution and this republic. I think constitutional patriots and defenders of liberty — ones like Henley, and perhaps like Ron Paul — do themselves no favor implying otherwise.

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NOTES: Kelman via Josh Marshall, where video of Ron Paul’s “Meet the Press” statements can be seen. “War of the Rebellion”: Cornell University “Making of America” digital archives.
* This would seem to open a loophole, but Lincoln closes it elsewhere: “If by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution — certainly would, if such right were a vital one. But such is not our case” (because ending slavery was not Lincoln’s aim at that time). While I don’t know Ron Paul’s mind on the subject, I can’t imagine Henley would categorize a potential future threat to a class of property he finds an “abomination” as sufficient grounds for revolution.
** However, I do not actually accept it. A successful Confederacy need not have cared a whit for events in Russia and Brazil, would have been a new alliance partner for European countries, and might have maintained and perpetuated slavery in old forms or new (mining, assembly lines) all but indefinitely even if agricultural slavery waned — also not a given. It’s hard to believe a country that went to war for the right to expand its substantial interest in slavery to new areas would not in fact have done so, and did not rightly anticipate material rewards from that.

The real thanksgiving story is much more interesting than the one we’ve learned. That story about Squanto, the friendly Indian? Even the name is wrong. From Chapter 2 of 1491, by Charles C. Mann:

More than likely, Tisquantum was not the name he was given at birth. In that part of the Northeast, tisquantum referred to rage, especially the rage of manitou, the world-suffusing spiritual power at the heart of the coastal Indians’ religious beliefs. When Tisquantum approached the Pilgrims and identified himself by that sobriquet, it was as if he had stuck out his hand and said, Hello, I’m the Wrath of God.

But he taught the Pilgrims that bit with the fish, right? Well, yes… but there may be a little more to it than that:

So little evidence has emerged of Indians fertilizing with fish that some archaeologists believe that Tisquantum actually picked it up from European farmers. The notion is not as ridiculous as it may seem. Tisquantum had learned English because British sailors had kidnapped him seven years before… In his travels, Tisquantum stayed in places where Europeans used fish as fertilizer, a practice on the Continent since medieval times.

Big deal with helping anyway — it was the smart thing to do, European technology outclassed Indians in every way, right? Not so much:

…the natives soon learned that that most of the British were terrible shots, from lack of practice — their guns were little more than noisemakers. Even for a crack shot, a seventeeth-century gun had fewer advantages over a longbow than may be realized. Colonists in Jamestown taunted the Powhatan in 1607 with a target they believed impervious to an arrow shot. To the colonists’ dismay, an Indian sank an arrow into it a foot deep. [...] When the Powhatan later captured John Smith, [historian] Chaplin notes, Smith broke his pistol rather than reveal to his captors “the awful truth that it could not shoot as far as an arrow could fly.”

At least they all sat down together in peace and harmony for that first Thanksgiving? Well, they weren’t that fond of eachother — what really united them was grousing about the neighbors:

By fall the settlers’ situation was secure enough that they held a feast of thanksgiving. Massasoit showed up with ninety people, most of them young men with weapons. The Pilgrim militia responded by marching around and firing their guns in the air in a manner intended to convey menace. Gratified, both sides sat down, ate a lot of food, and complained about the Narragansett. Ecce Thanksgiving.

However, I insist on believing there were cranberries. Happy Thanksgiving!

Washington threw itself a full dress funeral on Tuesday. I’m not complaining, I got the day off too. I’m also not one to criticize former President Ford unduly. When E.M. Forster once wrote that “I hate the idea of causes, and if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country,” he could not quite have had Ford’s pardon of Nixon in mind. But maybe it was those very words that tipped the balance for the bluff, loyal, plainspoken University of Michigan center so fervently eulogized in the Washington Cathedral and in the pages of our national newspapers. Perhaps Forster’s thought is a reason not to take issue with a president’s defining choice — but then it’s all the more reason to question his choice of friends.

I was resolved to not pay any attention whatsoever to the proceedings in favor of enjoying an unexpected extra day of vacation. But then, as I was driving a rental car back to National Airport — pardon me, Reagan National Airport — I switched on the radio and heard Henry Kissinger croak that Gerald Ford left the presidency with “no regrets, no second-guessing, and no obsessive pursuit of his place in history.”

“No regrets, no second-guessing.” A message all Washington might well prefer these days, and a message almost — no, certainly — calculated to appeal to Kissinger’s latest presidential client, so famously resistant to regrets, admitting mistakes, learning, call it what you will. When I watched the PBS recording of the cathedral service, it seemed to me that Tom Brokaw’s less calculating eulogy line — “When he entered the Oval Office — by fate, not by design — Citizen Ford knew that he was not perfect, just as he knew he was not perfect when he left. But what president ever was?” — got Bush’s pursed-lips-of-disapproval reaction, whether at being reminded of his own controversial elevation to the presidency, his fallibility, or both, I can’t say.

A state funeral is no different from any other in reminding those attending of their mortality. So it’s no surprise it serves as a solemn occasion for the political class of the republic to pluck from the recently deceased’s life those lessons most soothing and flattering to themselves, or distracting to others. And so we were treated to endless paeans to Ford’s “bipartisanship,” to the “healing” he brought about by pardoning Nixon, to the “civility” of the bygone era, and to his supposed lack of political ambition — even if the facts tend to speak otherwise,* or if the eulogists were singularly inappropriate. Thus David Broder’s predictable simpering about Ford’s “standard of civility”; Richard Ben-Veniste’s odd worries about the “specter” of legal action against Nixon “as our country moved into its bicentennial year”; Ron Nessen’s hackneyed, vague contrast of the golden Ford era with “these days of angry, divisive, polarized, downright nasty Washington rhetoric”; and in a particularly rich homage, Richard Cheney’s evocation of Ford’s courtesy — rarely has hypocrisy’s definition as the tribute vice pays to virtue been so perfectly demonstrated.

Above all, that “healing” pardon of Nixon also short-circuited a crucial legal opportunity — no, necessity — to prove that even a president is not above the law. Whatever Ford’s motives may have been, it was a negative lesson learned all too well by Ford staffers like Richard Cheney and Donald Rumsfeld — somewhat less averse to the “obsessive pursuit of their place in history” than their revered leader. Given their role in other Ford decisions like fighting the Freedom of Information Act, it’s hard to believe their advice on the matter was a simple matter of friendship — although they may well have pitched it that way.

So popular headlines like “Healer of Wounds” seem wide of the mark to me. I can’t recall where I read this over the last few days, so the metaphor isn’t mine, but one might fairly say Ford bound up a festering wound of executive lawlessness, leaving an infection that flared up over and over again over the next decades. Following Ford’s installment with Nixon’s pardon was not a model of how a republic and democracy should be run; as Avedon Carol wrote the other day, “The original Ford solution is what brought us to where we are now - we can’t do that again.”

When someone dies, most people will want to follow the old dictum, “if you can’t say something nice about him, say nothing at all.” And I’m certainly not suggesting Betty Ford and her children should have been subjected to anything less than a warm remembrance of someone who was by all accounts a decent human being — perhaps decent to a fault.

But at this point, we as a country can’t afford to draw any more wrong conclusions, we can’t afford to make each and every occasion of state yet another opportunity to confirm our fondest dreams and delusions about ourselves. “No regrets, no second-guessing”? That’s got to be the worst advice this country and its president could possibly get right now. Thirty years after Ford left office, his alleged virtues have become antidemocratic vices: “healing” is overrated, “civility” conceals or invites contempt, and “bipartisanship” thwarts the political will of the people expressed at the ballot box. Maybe that’s a shame, but that’s the way it is, and pretending we’re somewhere else or something else will just make things worse.

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* Ford’s ambition and partisanship were not so small as to fail to wage a bitter primary fight with Ronald Reagan and an equally determined contest with Jimmy Carter. Regarding “bipartisanship,” Ford vetoed 48 bills passed by the Democratic Congress in his short tenure in office, the highest veto rate of any American president since Truman. While there are two sides to any partisan political fight, Ford also picked many he lost: the 12 Ford veto override votes by Congress were the the most per year in the postwar era, and fortunately included the Freedom of Information Act.

NOTES: Richard Cheney’s hypocrisy noted by digby (”hullabaloo”). See also comments by fellow hullabaleer poputonian.

UPDATE, 1/7: Amy Goodman (”Democracy Now” radio host) expresses similar thoughts in the Seattle Post-Intelligencer (”Impeaching, Prosecuting Nixon Could Have Elevated the Nation“): “If those emerging power brokers [Rumsfeld and Cheney -- ed.] had witnessed a vigorous prosecution of Nixon and his co-conspirators, it could have elevated the country … and changed history. Perhaps a decade later, the Reagan-Bush administration would have thought twice about the Iran-Contra scandal, in which an unaccountable administration would defy Congress and illegally support the Contras in Nicaragua, who killed thousands of civilians. Perhaps the current Bush administration would not have dared to manipulate intelligence to invade Iraq, leading to the deaths of thousands of U.S. soldiers and hundreds of thousands of Iraqis.” (Hat tip: Dad.)

Writing in Slate, Diane McWhorter discusses the causes and effects of our curious and frankly dangerous reluctance to even consider the worst historical parallel there could be to our own state of affairs:

The taboo is itself a precept of the propaganda state. Usually its enforcers profess a politically correct motive: the exceptionalism of genocidal Jewish victimhood. Thus, poor Sen. Richard Durbin, the Democrat from Illinois, found himself apologizing to the Anti-Defamation League after Republicans jumped all over him for invoking Nazi Germany to describe the conditions at Guantanamo. And so by allowing the issue to be defined by the unique suffering of the Jews, we ignore the Holocaust’s more universal hallmark: the banal ordinariness of the citizens who perpetrated it. The relevance of Third Reich Germany to today’s America is not that Bush equals Hitler or that the United States government is a death machine. It’s that it provides a rather spectacular example of the insidious process by which decent people come to regard the unthinkable as not only thinkable but doable, justifiable. Of the way freethinkers and speakers become compliant and self-censoring. Of the mechanism by which moral or humanistic categories are converted into bureaucratic ones. And finally, of the willingness with which we hand control over to the state and convince ourselves that we are the masters of our destiny.

The analogies between then and now don’t need to be exact to have been and continue to be deeply troubling — see McWhorter for a detailed listing if you need it. As the Israeli historian Avi Schlaim once put it, the question is not whether we’re the same as Nazis; it’s whether we’re different enough.

If you tape over half your rear view mirror, you’re going to be missing a lot of traffic behind you, closing fast.

Via Jim Henley.

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EDIT, 12/4: italics shifted from “whether” to “same.” The precise quote: “The issue isn’t whether or not we are the same as the Nazis, the issue is that we aren’t different enough.”
UPDATE, 12/12: Welcome, Sideshow visitors! Comments are always welcome.

Last weekend, we visited George Washington’s Mount Vernon home again, it’s a favorite for all of us. There was a crafts fair, and it was great fun, in a make-believe kind of way: smoked turkey legs for lunch, a potter turning a pot on a simple foot-powered wheel, a candlemaker dipping candles. The First Virginia Regiment re-enactors showed how American Revolutionary war era soldiers formed a line, loaded, aimed, fired. Later we went out on a free boat ride and saw the historic house from the river, the same way British gunboats may have seen it during the war.

It all made me a little wistful. From an interview with human-rights lawyer Scott Horton by NewsCity’s Tim McGivern:

Now, if you know the tradition of the United States Army, one thing has been consistent and that is that we are aggressive and tough on the field of battle, but when you take prisoners they are treated humanly and with respect.

That’s the rule that was set by George Washington in the battle of Trenton on Dec. 25, 1776. The soldiers of the continental army took the Hessians and said these soldiers are mercenaries and we should take retribution on them. They wanted the Hessians to run the gauntlet and they would beat them with sticks.

No, we would never do that.

General Washington said we will not do this. He said these people will be treated with respect and dignity and they will suffer no abuse or torture, because to do otherwise would bring dishonor upon our sacred cause.

That’s one of the first orders given to the continental army and that antedates the United States. It has been military tradition for 240 years, and it was stopped by Donald Rumsfeld.

Emphasis added.

Those quaint words “sacred” and “honor” come up elsewhere, as it happens. As any loyal watcher of Liberty’s Kids knows, our very Declaration of Independence closes with the words “our sacred Honor,” as in “we mutually pledge to eachother our Lives, our Fortunes, and our sacred Honor.”

So I think this whole “honor” thing might be something worth considering by conservatives, concerned as they always are with our nation’s traditions and its original intent. At least, I wish it were.

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UPDATE, 9/21: photos added. NOTE: The reenactor didn’t say what was in the caption, nor was he asked the implied question. But I’ll leave the caption as it is.

The need to connect Bush and Lincoln comes from the very highest administration sources. In his Salon piece “A deluded king and his court lickspittles,” Blumenthal writes,

In the aftermath of the Iraq invasion, Bush was flattered by the analogy that he was like Franklin Roosevelt and Harry Truman, winning a world war and present at the creation of a new international order. However, since the election of 2004, a period during which the violence in Iraq has not diminished, Bush has been told he more closely resembles the beleaguered Abraham Lincoln. He is the Great Emancipator who has freed 50 million people in Afghanistan and Iraq but has not yet won the war.

Told by Condoleeza Rice, for example; on the May 11, 2005 Larry King Show, she said, “I’ve often wondered, in the darkest hours of the Civil War, what people were saying to Abraham Lincoln about whether this was going to turn out all right.”

Not surprisingly, Bush likes that idea; Blumenthal also notes Bush’s comments at Kansas State University on January 23, 2006:

… I understand politics, and it can get rough. I read a lot of history, by the way, and Abraham Lincoln had it rough. I’m not comparing myself to Abraham Lincoln, nor should you think just because I mentioned his name in the context of my presidency — I would never do that. He was a great President. But, boy, they mistreated him. He did what he thought was right.*

True, Bush disavows the explicit comparison, but in the manner of a TV courtroom lawyer who’s introduced an inadmissible point — “…withdrawn, your honor!” It’s a small thing amidst the other news of the moment, but the reason Lincoln’s memory is cherished is not just that he did what he thought was right, but that he did it well, and that he actually was right. We weren’t so fortunate this time around.

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* His very next sentences must be a rebuke to Vice President Cheney:

A lot of politicians, a lot of Presidents have gone through some tough times in the presidency, and I understand that. One of my biggest disappointments is the tone in Washington, D.C. I’ve done my best to try to elevate the tone. I just — needless name-calling, to me, is beneath the dignity of the office of the President.

A couple of months ago, Jim Henley took note of a conservative commentator using Lincoln’s Civil War actions as cover for Bush’s warrantless surveillance. Andrew McCarthy:

[Eavesdropping] was critical in the Civil War, when, by definition, it was done domestically — and without the slightest suggestion that federal courts should be involved.

In his post, Henley counted such arguments among the costs of Lincoln’s Civil War record — and suggested that those costs were another part of the cost of slavery itself, the “woe due to those by whom the offense came”:

Lincoln really did engage in high-handed, constitutionally dubious acts and got away with them. And because he got away with them, excuse-makers for Executive Branch martinets have used the “Lincoln did it!” defense ever since.Lincoln’s domestic security actions during the Civil War represent a cost we continue to pay, today. For that reason there will be critics of government power who judge him harshly, and with reason.

Lincoln
How do Lincoln’s actions and justifications for those actions compare to Bush’s?

McCarthy notwithstanding, the question of domestic technical eavesdropping was probably not much of an issue at the time simply because the Fourth Amendment (against unreasonable search or seizure) was considered to be only applicable to physical searches until well in to the 20th century.

Moreover, even had there been 19th century versions of FISA and Katz v. United States — two of the main legal pillars protecting domestic electronic communications today — “domestic” would not have been quite the right word for telegraph communications between Richmond and its generals. Had the Fourth Amendment immediately protected telegraph communications, communications within the Confederacy would have probably (and I would say rightly) considered “enemy” rather than “citizen” communications, judging by the 1863 Supreme Court Prize Cases rulings. If Lincoln could blockade the ports and seize the ships of enemies in the face of obvious war (and prior to the declaration of war), it’s hard to see why he could not wiretap their telegraph lines as well.

Lincoln was chiefly criticized for canceling habeas corpus — the right to dispute one’s arrest before a judge. Lincoln initially ordered the suspension in connection with protecting railway access to Washington, D.C., but subsequently allowed and encouraged the same suspensions to speed the arrest of draft resistors and anti-draft agitators.

In a famous June 1863 letter to “Erastus Corning and Others,” Lincoln addressed his critics on the occasion of the controversial and questionable arrest of Congressman Vallandigham, a Democrat vehemently opposed to further prosecution of the war. The letter is best known for the memorable question, “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?” But there were more than folksy soundbites in what was a deeply considered, prepared communication to the nation.

Lincoln’s principal goal was neither to justify nor disavow the Vallandigham arrest in particular, but to assert that the Constitution’s own formal guarantee of habeas corpus — embedded in Article I, Section 9 — permits a president to broadly suspend that writ in cases of rebellion or invasion:

I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public Safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them—as well in places to which they may prevent the rebellion extending as in those where it may be already prevailing—as well where they may restrain mischievous interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be—as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army—equally constitutional at all places where they will conduce to the public Safety, as against the dangers of Rebellion or Invasion.

The letter was more than just a prompt, effective public defense of Lincoln’s wartime administration. In further sad contrast to our current president’s pronouncements, it did quite as much to limit a future president’s powers as it did to assert them:

If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them—in other words, that the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. (emphases added)

As Benjamin Kleinerman points out in his excellent essay “Lincoln’s Example: Executive Power and the Survival of Constitutionalism,”

Lincoln did more than merely take those actions necessary for the preservation of the Constitution; he also publicly announced his reasons behind the constitutionally questionable actions he took. … Lincoln attempted to avert the danger, suggested by the medicine metaphor, that the public will become ’addicts’ of executive power, by trying to teach the public that his questionable actions were acceptable only within the limits imposed by the Constitution’s preservation.

Beyond arguing his case publicly, Lincoln saw to it that his argument — all of it — became well known. In Team of Rivals, Doris Kearns Goodwin writes: “Lincoln took every step to ensure that his words would shape public opinion. Printed in a great variety of formats, the letter eventually reached an astonishing 10 million people in their homes and workplaces, on isolated farms and in the cities.”

Although Lincoln also took early and strictly speaking unauthorized military action after the fall of Fort Sumter, he promptly submitted all actions “pushing the Constitutional envelope,” so to speak (independently calling up militia and expanding the military, transferring funds, imposing a blockade) to Congressional approval, indeed, within the 90 days prescribed by a War Powers Act more than one hundred years later. As Daniel Farber comments in his book Lincoln’s Constitution:

Thus, even under a highly Congress-centered view of the war power, Lincoln acted appropriately. Indeed, given current laments about the ineffectiveness of the War Powers Resolution, it is somewhat ironic that Lincoln’s record of “compliance” with the resolution is better than that of the modern presidents at whom it was aimed.*

Summing up, Lincoln conducted his tests of emergency presidential powers publicly, acknowledged criticism of his actions publicly, rebutted those criticisms publicly, sought widespread knowledge and acceptance of his analysis rather than hiding it behind a cloak of secrecy, and submitted his actions to congressional approval as soon as possible.

Crucially, Lincoln also acknowledged distinct and very narrow limits on why a president could take such constitutional initiatives: if the survival of the Constitution itself demanded it. And despite the life and death struggle of “government of the people, by the people, for the people,” Lincoln made sure the people knew it.

Bush
By contrast, the first thing to notice about Bush’s approach to governance is that it’s difficult, if not impossible, to find any limits whatsoever that he and his advisors acknowledge for his presidency. Perhaps the best known evidence is in the infamous August 1, 2002 Department of Justice Bybee memo discussing the administration’s legal stance on interrogation and torture:

In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these cases.Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President. … Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

(emphases added)

This is but one outgrowth of a wider “unitary executive” theory that was already being implemented by the Bush administration well before the 9/11 attacks — a trend most apparent in its growing use and abuse of “signing statements,” in which the president outlines reservations about a law he is signing into effect, and may in effect signal he will not enforce it or always abide by it.** Among the better known signing statements are those signaling less than full, unqualified support for enforcing the McCain anti-torture amendment or certain provisions of the Patriot Act.

In his 2005 article Rethinking Presidential Power — The Unitary Executive and the George W. Bush Presidency, Christopher Kelley describes one case showing just how pernicious the practice is. A law introduced by Senator Patrick Leahy and passed by Congress required the Bush administration to report “any instance in which the executive branch either refused to enforce a law or defend a statute it deemed unconstitutional” – e.g., signing statements. But even in Bush’s signing statement for this legislation, he stated:

The executive branch shall construe section 530D of title 28, and related provisions in section 202 of the Act, in a manner consistent with the constitutional authorities of the President to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.(link added)

Further, the Bush administration routinely relies on secrecy to hide even more constitutionally problematic actions (e.g., rendition, warrantless surveillance, torture) from view. While that’s understandable in a way, given the revolting nature of many of those secrets, the point here is that it is also a conscious decision not to engage in constitutional rule, but in unilateral rule. “Secrecy in the Bush Administration,” a minority staff report for the House Committee on Government Reform, has found that

…the average number of original decisions to classify information increased 50% over the average for the previous five years. [...]

In over 100 instances in which Rep. Waxman attempted to conduct oversight on important issues, the Bush Administration ignored requests for information, refused to provide information, or provided incomplete and inadequate responses. In addition, where the Administration provided responses, whether complete or incomplete, they were usually substantially delayed, commonly missing the deadlines for responding by several months or more. [...]

Through legislative changes, implementing regulations, and administrative practices, the Administration has undermined the laws that make the federal government more transparent to its citizens, including the Freedom of Information Act, the Presidential Records Act, and the Federal Advisory Committee Act. At the same time, the Administration has expanded the reach of the laws authorizing the Administration to classify documents and to act without public or congressional oversight. Individually, some of the changes implemented by the Bush Administration may have limited impact. Taken together, however, the Administration’s actions represent an unparalleled assault on the principle of open and accountable government.

To forestall one argument, many of these tactics were in full swing well before 9/11, most notoriously in the case of Cheney’s 2001 Energy Task Force, where the struggle to obtain information about who participated in this task force and what was said was stonewalled at every turn — and was eventually ended by a complacent, compliant Supreme Court. Of course, many post-9/11 secrets were also kept mainly to avoid political embarrassment; for example, the Bush administration worked long and hard to keep the Presidential Daily Brief warning of Al Qaeda attacks in America out of the hands of the 9/11 Commission.

Finally, and perhaps most damaging to any comparison with Lincoln’s constitutionalism, Bush not only engages in untrammeled extraconstitutional actions, and not only often keeps those actions secret, but actively lies…

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. — 4/20/2004

and lies…

First of all, any action that takes place by law enforcement requires a court order. In other words, the government can’t move on wiretaps or roving wiretaps without getting a court order. — 7/14/2004

and lies…

Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, a federal judge’s permission to track his calls, or a federal judge’s permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S. — 6/9/2005

…about what he’s doing.*** Far from “acting in good faith,” as Senator Arlen Specter has claimed, this president has actively misled Americans expecting that he will “preserve, protect and defend the Constitution of the United States” — to quote from the oaths of office he swore in 2001 and 2005.

Mentioning these lies are not some afterthought to Senator Russ Feingold’s S.398 censure resolution — they are crucial, damning, and irrefutable charges against this president. Constitutional faith has been broken between a president and the people of the United States, whether enough of them see it that way or not.

Conclusion
Having defended Lincoln’s grounds for his actions during the War of the Rebellion, it’s important to concede that military arrests were overused and abused during his presidency. But it’s far less important to defend all of Lincoln’s and his generals’ actions per se than to remind ourselves how his open, honest, and narrow necessity- and Constitution-based defense of those actions should guide Americans facing new challenges.

No Lincolnian doctrine of necessity can possibly apply to the current situation. A terrible attack took place five years ago. It killed a great many people, far too many. But it did not threaten the continuity of the nation or its Constitution the way the Civil War did. To answer both McCarthy and Henley: yes, Lincoln took critical and constitutionally questionable actions in the Civil War - but many of those actions were very arguably constitutional, and all were taken precisely because the survival of the Constitution really was at stake. The same is not true today — at least not via exterior threats. And if McCarthy is arguing that Americans in general are a threat on the order of Confederates of yesteryear, he should say so more plainly.

Future attacks like 9/11 or worse are a real concern. But many, many, many straightforward, constitutionally unproblematic steps remain to be taken before we can feel reasonably confident we have done all we can to minimize the likelihood of such attacks, and all we can to weather those that occur. Airport precautions should be reviewed and refined; ports, nuclear, and chemical plants should be made more secure; nuclear materials around the world should be inventoried and secured; public health preparations should be taken; continuity of national, state, and local governments should be assured; emergency preparedness plans should be drawn up, refined, funded, and practiced. And yes, well-targeted surveillance, within a careful framework of judicial and legal oversight, should continue.

When and if all normal preparations of this sort are taken, and there still remain valid concerns about the risks to the survival of the United States itself, then — and only then — should extraconstitutional means be considered by a president. As Kleinerman writes in an exchange about his article with AEI’s Joseph Knippenberg,

…the distinction between the ordinary and the extraordinary so essential to Lincoln’s justification of his actions no longer applies given the open-ended threat from asymmetric warfare.

We are nowhere close to requiring constitutionally questionable or illegal actions by a president in the last defense of a continuing Constitution. To pretend that we are, or to support such pretensions, is to place the self-regard and political ambitions of an amoral, secretive, and dishonest president above the obligations he has to that Constitution. To quote the final lines of Kleinerman’s essay:

The question becomes: are we, or can we become, a constitutional people attached enough to the rule of law so as to prevent the overextension of executive power? In other words, are we capable of insisting upon our Constitution even when presidents do not?

=====
* p. 142.
** Partisan defenders of the Bush administration will rightly point out that the “unitary executive” theory was implemented and defended by other presidents including Jimmy Carter and Bill Clinton well before George W. Bush’s presidency. However, compared to this administration, their use of such extraconstitutional mechanisms as “signing statements” was sporadic and limited. Kelley counts 76 signing statements by all presidents before Carter, 322 for all presidents before George W. Bush — and 435 in Bush’s first term alone (p. 31).
*** In order, the statements were made on 4/20/2004 — Protecting the Homeland Q and A, Buffalo, New York; 7/14/2004 — President’s Remarks at Ask President Bush Event, Mid-States Aluminum Corporation, Fond Du Lac, Wisconsin; and 6/9/2005 — President Discusses Patriot Act, Ohio State Highway Patrol Academy, Columbus, Ohio. Constitutionally significant lies by Bush and his administration have not been limited to warrantless surveillance. Most recently, Murray Waas has reported that Bush knew that he and his administration might well be making false statements about Iraq procuring aluminum tubes suitable for nuclear weapons development.

NOTES: Kelley article via Barbara O’Brien (”Mahablog”: The Unitary Executive, Part I: Signing Statements). Kleinerman article via Joseph Knippenberg (AEI): Lessons from Lincoln and Lincoln and Bush (at “No Left Turns”), both via e-mail from Brett Marston. Waas link via Dan Froomkin, washingtonpost.com.

CROSSPOSTED to Daily Kos.

“Lewis’ First Glimpse of the Rockies”
by Olaf Seltzer.

On the afternoon of May 26, at the eastern end of the breaks, Lewis climbed the surrounding bluffs, a “fortieguing” task, but he thought himself “well repaid for any labour” when he reached the highest point in the neighborhood, because “from this point I beheld the Rocky Mountains for the first time.”
–Stephen Ambrose, Undaunted Courage

Whilst I viewed those mountains, I felt a secret pleasure in finding myself so near the head of the - heretofore conceived - boundless Missouri. But when I reflected on the difficulties which this snowy barrier would most probably throw in my way to the Pacific Ocean, and the sufferings and hardships of myself and party in them, it in some measure counterbalanced the joy I had felt in the first moments in which I gazed on them. But, as I have always held it little short of criminality to anticipate evils, I will allow it to be a good, comfortable road until I am compelled to believe otherwise.
–Meriwether Lewis, Journals of Lewis and Clark

The sighting at the eastern end of the Missouri Breaks was a first strong intimation there would be no easy Northwest Passage, the hoped for water route to the Pacific that was the strategic object of the expedition. Those hopes would be dashed for good that August, when the headwaters of the Missouri River proved to be well short of mountain ranges still dividing the expedition from the Pacific Ocean.

Lately, Maddie and I’ve been watching the Ken Burns documentary “Lewis and Clark: The Journey of the Corps of Discovery.” It’s a lovely, lovely piece of work that I can’t recommend highly enough — a great story well told by people who care about it, from Stephen Ambrose to William Least Heat Moon to Dayton Duncan. In the telling and the journals of the expeditionaries, you glimpse the personalities of Lewis, the educated brooder, of Clark, the soldier and frontiersman, of their many competent, dauntless corpsmen such as Joseph Ordway, or of Sacagawea, the calm interpreter, a girl on a thousand mile trek with a baby on her back — “better than any white flag,” as Least Heat Moon put it.

The sheer beauty of the land they traversed, by turns majestic, gentle, and mysterious, is the constant companion to the story. The impact of the land was sometimes palpable in Lewis’ journal, as in this famous entry:

As we passed on, it seemed as if those scenes of visionary enchantment would never have an end.

Compared to what came later, the expedition was generally prudent and decent with the Native Americans it encountered, and humbled by the challenges nature presented, from grizzlies to mountain ranges to snow and wind and rain. Part of the poignancy of the story comes in realizing how soon awestruck discovery would yield to an inexorable flood tide of settlers washing across the land. But that, too, was the point:

The work we are now doing is, I trust, done for posterity in such a way that they need not repeat it. We shall delineate with correctness the great arteries of this country. Those who come after us will fill up the canvas we begin.
– Thomas Jefferson

We should renew our efforts to fill that canvas well, to care for a land that has nourished us, to preserve the American experiment, and make that experiment a success.

Resources
A small sample of the current outpouring of online exhibits about the Lewis and Clark Expedition:

The Journals of the Lewis and Clark Expedition (University of Nebraska, Virginia)
Lewis and Clark: Illustrations from the Journals (American Philosophical Society Library)
Lewis and Clark: Mapping the West (Smithsonian National Museum of Natural History)
Discovering Lewis and Clark: “a hyperhistory in progress”
Lewis and Clark Trail Heritage Foundation
Lewis and Clark in Montana (State of Montana)
Lewis and Clark Bicentennial (United States)
Lewis and Clark: The National Bicentennial Exhibition (Missouri Historical Society)
In the footsteps of Lewis and Clark (Sierra Club)
White Cliffs of the Missouri (edbrenegar.typepad.com) …Lewis’ “scenes of visionary enchantment”