War Presidents and Civil Liberties

Do the greatest presidents pose the greatest danger to liberty?
By Ross K. Baker

Mention the names of John Adams, Abraham Lincoln, Woodrow Wilson and Franklin D. Roosevelt to historians, and they will tell you that these are some of our greatest presidents.
Mention the Alien and Sedition Acts of 1798; the revocation during the Civil War of the writ of habeas corpus, which protects Americans from false imprisonment; the Palmer raids of 1918, which swept up scores of political dissidents; and the forced relocation of Japanese-Americans during World War II, and those same historians will tell you that these acts constitute some of the worst assaults on American liberty.

It is a disturbing fact that each one of these four revered presidents is responsible for one of the four onslaughts against civil liberties that took place during their time in the White House.

With the exception of Adams, it should be quickly noted, all of these chief executives served during times of war. It also has often been remarked that our wartime presidents have been judged as great or near-great.

There are, of course, exceptions: James Madison, a towering figure at the Constitutional Convention but rather an ordinary president at the time of the War of 1812; James Polk during the Mexican War; William McKinley, who was commander in chief during the Spanish-American War; and Lyndon Johnson during the Vietnam War.

What about President Bush?

We will need to wait for the verdict of future historians on the standing of President George W. Bush, but it is certain that the USA Patriot Act, which was enacted at his behest and has had portions assailed by civil libertarians, will weigh heavily in his ranking.

When we look back on the wartime presidents of the past, we tend to regard their constitutional transgressions as minor lapses in otherwise sterling careers. In Lincoln's case, the jailing of an opponent of the war in Ohio can hardly be said to equal in importance the salvation of the union and the destruction of slavery. In his case, as in the others, service during wartime contributes substantially to the high regard in which he is currently held.

But what, if anything, is the connection between these great presidents who served in wartime and the notorious transgressions against the liberties of Americans? A simple answer is that wars have historically expanded the powers of the presidency at the expense of those of other institutions, notably Congress. A leading advocate of a muscular presidency, Alexander Hamilton, observed that it is the nature of war to increase the executive authority at the expense of the legislative.

This argument, which implies that one steady hand guiding a nation at war is preferable to hundreds of legislators, is a persuasive one, and it is one that Lincoln found especially congenial in his efforts to fend off congressional committees from second-guessing him during the Civil War.

But more than just steadfastness and constancy mark the wartime presidents. There also was, significantly, their readiness to defy constitutional obstacles, as Lincoln did when he usurped a power given to Congress by unilaterally suspending habeas corpus in Maryland. Lincoln justified his action by asking, "Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?"

The argument, however, that holding office during wartime, by itself, caused these presidents to be judged great is a weak one. They probably would have been revered because they were men who believed in a vigorous presidency. Lincoln was not just the great emancipator and savior of the union, but also the Lincoln of the Homestead Act, which opened vast tracts of Western land to settlement. He was the Lincoln of the land-grant colleges and the income tax.

Likewise, Wilson's accomplishments include not just his leadership in World War I, but also the establishment of the Federal Reserve, the graduated income tax, the Clayton Anti-Trust Act and restrictions on child labor.

As for FDR, had he declined to run for a third term in 1940, choosing not to break precedent, he would still be celebrated as the president who rescued the nation from the Great Depression.

Such boldness prompted these presidents to push the boundaries of their authority.

History as the judge

Bush, who proclaimed himself a wartime president after the terrorist attacks of Sept. 11, 2001, has also proved himself an activist president on non-military matters.

He is responsible for the massive and unprecedented federal involvement in education with the No Child Left Behind Act. Likewise, his extension of Medicare to cover prescription drugs is a major break from the traditional Republican small-government doctrine. It is not surprising, then, that his efforts to combat terrorism were not greatly constrained by constitutional scruples.

History will not rate Bush by some impossibly lofty standard when it measures him against wartime presidents. Rather, he will be appraised in light of the more modest and imperfect record of those predecessors.

These were presidents whose encroachments were impulsive rather than systematic and who did not try to aggrandize the powers of their office or, in the interests of national security, permanently curtail the rights of the people.