A Theory of Republican Perogative
Article by Julian Davis Mortenson
From Volume 88, Number 1 (September, 2014)
88 S. Cal. L. Rev. 45
It was a dark time for the United States. Hopelessly outnumbered and outgunned, the federal troops at Fort Sumter surrendered to Confederate forces on April 13, 1861. Four days later, Virginia politicians voted to secede, and the Commonwealth militia mobilized to seize federal positions throughout the state. Terror swept through Washington, D.C., which suddenly found itself “on a military frontier.” Then things got worse. The Maryland state legislature announced a special session to decide whether to follow Virginia’s example. Riots by Confederate sympathizers exploded across Baltimore as word got out that the federal government was trying to bring in reinforcements by train. Mobs in Maryland blocked Massachusetts’s troops from reinforcing the pathetically under-defended capital. Authorities in Baltimore burned the city’s main railroad bridges—an act that “looked like plain treason” and left the government in Washington “defenseless and cut off from the rest of the North.”
War was “an hour away from the capital and moving closer every minute,” terrified civilians were flooding out of Washington, and even the first arrival of reinforcements by boat left 1600 Union soldiers facing 8000 Confederate soldiers right outside the city. On April 26, 1861, General-in-Chief Winfield Scott warned that “an attack on Washington was possible at any moment” and issued “desperate orders” “not to give way on the bridges leading into the city ‘till actually pushed by the bayonet.’” The next day, Lincoln issued a tersely worded order authorizing General Scott to suspend habeas corpus “at any point on or in the vicinity of any military line, which shall be used between the City of Philadelphia and the City of Washington.” Union forces made hundreds of arrests in the ensuing weeks, including of leading politicians and private citizens whose worst crime seems to have been skepticism about the Union case. And Washington did not fall.
Lincoln’s suspension of habeas corpus is widely recognized as unconstitutional. And yet, somehow, it is also widely seen as an act of necessary statesmanship. What should we make of this decision to break the law in the teeth of a crisis—and perhaps more important, what should we make of how history has evaluated that choice? Largely in response to that puzzle, this Article introduces a pair of ideas: the privilege of republican prerogative and the obligation of a republican ethic. Together, they offer a coherent and principled account of how our political culture can accommodate certain forms of executive lawbreaking without resorting to catchall claims of legal privilege or constitutional override. Republican prerogative is probably not the only plausible justification for extraconstitutional lawbreaking, but it is a crucial one, with deep roots in our intellectual tradition.
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