1864 & Me

Some of the good folks at Southern Appeal have taken umbrage at my essay Monday, which drew parallels between Sunday’s Iraq election and the American presidential election of 1864. At least one is demanding an apology for my having purportedly compared soldiers who fought bravely for the Confederacy to terrorists killing civilians in Iraq. Had I done anything so shameful, I would not hesitate to apologize–and to check myself into the nearest mental ward. As I have done no such thing, and would not, I don’t apologize. I do, however, think it’s appropriate to respond to some of the points raised.

First and foremost, the Confederate soldier was an honorable combatant. From the perspective of the Union, he was, of course, the “enemy.” But he was no terrorist — not remotely. I did not go into all of the reasons why martial law was imposed in various parts of the United States, but when I argued that it was done in response to terrorism, I was referring to various violent incidents that occurred, throughout the war, in territory under Northern control. See, e.g. Paul Johnson, A History of the American People at p. 485 (Referring to the “increasing desperation of the South” in September 1864, which was “expressed in terrorism, bank-raids, and murder in Northern cities” and “inflamed the Northern masses”). I did compare the disastrous (for the Union) Petersburg military offensive to American operations against terrorists in Falluja, but the point I was making was that in 1864, as in the run-up to the Iraq election, there were numerous setbacks and victory was not assured as the election approached. Noting that the toll of two different struggles is comparable is a very different thing from saying that the forces responsible for that toll are equivalent. A family's finances can be equally depleted by a robbery or a bad investment decision — that doesn't render these two very different things the same.

To accuse me of drawing a moral equivalence between the Confederate soldier and the al Qaeda terrorist simply because I recognize a parallel in the effects of the different wars on the electoral process is as groundless as would be a contention by me that my critic is in favor of slavery because he has a harsh view of Abraham Lincoln and a favorable view of Supreme Court Chief Justice Roger Taney (author of the Dred Scott decision). I wouldn't attribute such base motives to my critic, so I am at a loss to understand how he does not think I know the difference between an honorable soldier and a terrorist.

Second, I never said, nor do I believe, that there were no excesses in the imposition of martial law. There clearly were. But the fact that there were many incidents of suppression of mere dissent does not eradicate the fact that Lincoln was responding to a real and severe insurrection. The constitutional scholar Geoffrey Stone — who is often critical of Lincoln (although far more understanding of what he was up against than my critic) — notes the following:

It is unknown exactly how many civilians were arrested by military authorities during the Civil War. Estimates range from 13,000 to 38,000. Most of these arrests were in the border states and, as the war moved south, in the states of the Confederacy; most were for such offenses as draft evasion, trading with the enemy, bridge burning and other forms of sabotage. Although phrases and words like “treasonable language,” “Southern sympathizer,” “disloyalty,” and “inducing desertion” appear occasionally in the prison records, relatively few individuals were arrested for their political beliefs or expressions.

Stone, Perilous Times — Free Speech in Wartime, at p. 124. It is important to consider the excesses in this context. I did not say that the arrests of those engaging in dissent was courageous; nor do I think it is fair to say, as my critic does, that they were the “acts of a tyrant.” They were, instead, the unavoidably erratic acts of a government dealing with a true existential crisis — and it bears mentioning that Lincoln himself believed much of what was done in the way of stifling lawful protest (which he often learned of only after the fact) was excessive. I do think Lincoln is the hero of the Civil War, just as I think President Bush will be remembered as a hero of the current war. But taking such a position is not a blind endorsement of everything that was done — even Lincoln didn't think every judgment he made was the right one.

Third, turning to my discussion about the struggle between Lincoln and Chief Justice Taney, my critic claims I am whitewashing more of Lincoln's sins because I failed to mention that only Congress can constitutionally suspend the writ of habeas corpus and Lincoln's suspension was held unconstitutional. I don't think this is a fair criticism.

Obviously, this was not intended as a disquisition on habeas corpus jurisprudence; I was simply observing what I regard as an interesting historical parallel: viz., that the suitability of the civilian courts for dealing with wartime exigencies was an issue just as vexing and controversial in 1864 as it is today. But as long as my critic brings up suspension of the writ: (a) at the time Lincoln suspended the writ, it was not settled law that the executive did not have that power; (b) there is nothing in the text of the Suspension Clause that indicates the president does not have this power — the clause merely says that the writ may only be suspended in cases of rebellion or invasion, not who may suspend it; (c) the Supreme Court ultimately held that Congress alone had the power based on the structure of the Constitution (the Suspension Clause is in Article I, Sec. 9), but that hardly meant Lincoln's construction had been an unreasonable one; and (d) certainly the historical evidence does not support that Lincoln made an unnecessary and blatantly unconstitutional power grab: on March 3, 1863, the Congress endorsed Lincoln's suspension of the writ, enacting a law (12 Stat 755) which stated that “during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.” (See Stone, Perilous Times, supra, at 581 n.173).

This leads to the next turn in my critic's moral equivalence mode of thinking: the suggestion that because I have compared the wartime detention situation I am thoughtlessly dragging President Bush, who has been respectful of the Court's precedents, down to the level of President Lincoln, who my critic believes reviled the Court. No one actually familiar with my support of President Bush's treatment of enemy combatants could really think I have anything but the highest regard for what the administration has done in this area, and anyone familiar with the president's graciousness can only suppose he would be thrilled at being put on a par with Lincoln. But, in any event, I would remind my critic that not everyone shares his view of the current administration's adherence to what is now settled law (but was unsettled when Lincoln confronted it). Justice Scalia, for example, in his dissent in last term's Hamdi case, concluded that by detaining an American citizen as an enemy combatant without charge or trial, the administration had clearly violated the suspension clause and the Court's related precedents. This viewpoint did not carry the day, but Justice Scalia's argument was typically thought-provoking, and demonstrates that things are not nearly as black-and-white as my critic would have them. (See here).

Fourth, in my discussion of the 1864 Democrats (which primarily quoted from their party platform, expressed at the Democratic Convention of August 1864) (see David Herbert Donald, Lincoln at p. 350), I did not come close to suggesting that “one should not criticize the policies of an administration at war.” My point, palpably, was that sometimes those criticisms are both politically motivated and wrong, and that a president must maintain the courage of his convictions.

Fifth, I don't believe the historians' consensus is, as my critic suggests, that Lincoln stole the 1864 election by voter fraud. My point, however, was that the legitimacy of Lincoln's election was not diminished by the happenstance that many Confederate states did not participate in the election, and that, similarly, the Iraqi election outcome will not be tainted by the non-participation of voters from the Sunni areas.

Sixth, and finally, I simply don't understand my critic's being incensed at my comparison of Sherman's campaign and Abu Ghraib. If he takes a breath, I think he may find that we have a lot of common ground. What I observed was that while our society seems obsessed by the Abu Ghraib abuses, in many ways they pale in comparison to the atrocities attendant to Sherman's march. On this my critic seems to agree (“How can McCarthy compare to suffering wrought by Sherman to a few instances of abuse at a prison?”). I went on to point out that now, 140 years later, Sherman's feat is thought legendary, which somehow has my critic inferring that I think someday Abu Ghraib, too, will seen as “something to be proud of,” a thought he not surprisingly finds “sickening.”

This is a patent distortion. My point was that war is hell because even victories can never be fully divorced from man's inhumanity to man. Sherman's campaign is legendary because it was a major victory in the war; that does not mean the atrocities it resulted in are something to be proud of. Analogously, Abu Ghraib will never be something to be proud of but, 140 years hence, I believe it will be seen in context as a sorry episode in what will otherwise be remembered as a legendary military campaign which enabled an enslaved people to live in freedom.

The anguish caused by the Civil War can never be removed and must never be forgotten. A great benefit, however, came out of all that suffering: the Union was preserved, which means the great states of the South remain a crucial part of our national fabric — not to mention the home of a disproportionately large number of the brave men and women putting their lives on the line in the armed services of the United States. I honor my fellow citizens of the South, and meant no disrespect to the proud legacy of the Confederate soldier.