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Let Neo Cons Tell Us What To Think? No Thanks Mr. Tobin

Jonathan S. Tobin and Copperhead Movie Poster
Earlier this summer we reviewed the Ron Maxwell film Copperhead and urged readers to see it because we think it is a good period drama about a fascinating and little known element of Civil War history and because we saw in it some useful insights into the political and social effects of Civil War abuses of the Constitution that find parallels in today’s “war on terror” and other extra-constitutional actions of Presidents Barack Obama and George W. Bush.

Apparently this drew the ire of neo con writer Jonathan S. Tobin, Senior Online Editor of Commentary magazine.

In Mr. Tobin’s analysis, if you like Copperhead and identify in anyway with the film’s leading character, Abner Beech, a fictional Northerner who was oppressed for his anti-war views, then you are a racist “pro-secessionist and neo-confederate” "oddball extremist interested in refighting the Civil War” “from the fever swamps of the far right.”

Copperhead is of course a work of fiction, so by this childish logic anyone who likes All Quiet On The Western Front must surely yearn for the Kaiser’s return to the throne of Germany and the many fans of Gone With The Wind in my 85-year-old mother’s book club must all be Confederate Revanchists itching to revive the ante bellum South.

It is very bad history and intellectually dishonest to dismiss, as Mr. Tobin does, the questions and debates about Civil War era constitutional issues raised in Copperhead as being confined strictly to racists in the North; Lincoln himself constantly questioned the limits of his own power, as did members of his Cabinet, prominent newspaper editors and Members of Congress.

And some of the issues raised in those debates are very much alive today outside “the fever swamps of the far right.”

For an excellent discussion of the abuse of presidential executive power, before the greatest excesses of the George W. Bush and Barack Obama administrations, see Todd F. Gaziano’s 2001 legal memo on presidential power for The Heritage Foundation wherein he notes that some of Lincoln’s actions were probably unconstitutional, but were never challenged in court.

Or if you like to get your history from the movies, then Oscar-winner Daniel Day-Lewis playing the title role in Lincoln also gave extensive treatment to that question, done best in a monologue that begins, “I decided that the Constitution gives me war powers, but no one knows just exactly what those powers are. Some say they don't exist. I don't know. I decided I needed them to exist to uphold my oath to protect the Constitution…” (You can read the entire monologue through this link)

Mr. Tobin seems to have missed that even though he was personally opposed to slavery, Lincoln’s objective from the beginning of the Civil War was to preserve the Union, not necessarily to end slavery, and grappling with the questions posed by a policy of violating the foundational document of the Union to preserve it was one of his major political challenges.

As Lincoln said in an 1862 letter to newspaperman Horace Greeley, “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union.”

The Emancipation Proclamation was just one example of how Lincoln struggled with the problem of violating the Constitution to save it, or at least save the Union, and how he was acutely aware of the debate over the constitutionality of his actions. 

As he noted in an August 26, 1863, letter he wrote to his friend James Conkling at a time when Northern sentiment against the Emancipation Proclamation was still running very strongly, “You dislike the emancipation proclamation; and, perhaps, would have it retracted. You say it is unconstitutional---I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there---has there ever been---any question that by the law of war, property, both of enemies and friends, may be taken when needed?

Well, yes there has been: The Fourth Amendment to the Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Likewise the Fifth Amendment says, “No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Can you violate the Constitution to save it, or save the Union?

Lincoln decided he could and he must.

Can presidents today violate the Fourth Amendment, the Fifth and the Ninth Amendments, as well as a variety of statues to fight a “war on terror,” kill our fellow Americans without due process in a drone strike or launch a war against Iraq without a congressional declaration?

Presidents Bush and Obama decided they could and they have.

Many limited government constitutional conservatives and libertarians object to these actions as both unconstitutional and antithetical to American values, just as many at the time of the Civil War objected to Lincoln’s actions.

It requires a rather shallow intellect or an intentional misreading of history not to see a pretty straight line between the debate Lincoln had with himself about presidential power, and the debate about the limits of presidential power going today.

As I sit at my desk holding a cup that belonged to my ancestor, Captain James A. S. Mitchell, who served in the Union cavalry, before returning to his law practice and eventually being twice elected to the Indiana Supreme Court, I wonder how questioning the propriety of a president unilaterally dragging America into the wars in the Middle East espoused by neo cons like Mr. Tobin suddenly made me a “pro-secessionist neo-confederate.”

And, as I look at pictures of my ancestor John D. Defrees, an Illinois newspaperman who served in the Lincoln administration and who knew Abraham Lincoln well, and David and Jonathan Mather, who were among the founders of the Republican Party in Indiana, I wonder how questioning the limits on presidential power, in the same way that Abraham Lincoln himself did, somehow turned me into an “oddball extremist interested in refighting the Civil War” from the “fever swamps of the far right,” while a neo con like Mr. Tobin can today blithely absolve President Obama of answering the same questions Lincoln grappled with in his time.

Conservatives of honest intellect and good will may come down on different sides of today’s questions about the constitutional limits of presidential power, however, Jonathan Tobin’s ad hominem attack on Richard Viguerie and others who found Ron Maxwell’s film Copperhead to be a useful contribution to that debate shows he possesses neither of those attributes.

George Rasley, editor of ConservativeHQ.com, served as an Indiana member of the Indiana -- Tennessee Civil War Memorial Commission.

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