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Constitutional problems under Lincoln

01 Jan 1926-
About: The article was published on 1926-01-01 and is currently open access. It has received 92 citations till now.
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R. R. Baxter1
TL;DR: In this article, it is revealed that Lieber's primary source for the Code of International Law was the notes and files that he had painstakingly built up during his teaching career, and that he probably relied heavily on Heffter's Das Europaische Volkerrecht der Gegenwart.
Abstract: It is unprofitable to indulge in much speculation concerning Lieber's sources for the Code. Since he had been a student of the law of war for at least a quarter of a century before the Instructions were promulgated, his primary source was Lieber reinforced with the notes and files that he had painstakingly built up during his teaching career. Under such circumstances, one can only mention his likes and dislikes. Chief among the latter were both Lawrence's Wheaton and “old” Vattel, whom he characterized as “Father Namby-Pamby”. Halleck's International Law was naturally looked upon with great favor, the more so because Halleck had drawn on Lieber's Political Ethics. Lieber probably relied heavily on Heffter's Das Europaische Volkerrecht der Gegenwart. He also consulted Grotius, Bynkershoek, and Pufendorff among the classical writers. In his library or mentioned in his works are books by a host of names, many of them long since forgotten : Zachariae, Trendlenburg, von Martens, Phillimore, Mackintosh, Whewell, Foelix, von Mohl, Bluntschli (a close friend of Lieber), Bernard, Kennedy, Kluber, Pinheiro-Ferreira, Kent, and Theodore Dwight Woolsey.

33 citations

01 Jan 2019
TL;DR: In this paper, the authors discuss the road to CONSCRIPTION and the 20th century's challenges to it, including the 1863 JUDICIAL BATTLES and 20TH CENTURY CHALLENGES.
Abstract: ii ACKNOLEDGEMENTS iv INTRODUCTION 1 CHAPTER ONE: THE ROAD TO CONSCRIPTION 47 CHAPTER TWO: CONSTITUTIONAL CONSERVATIVES BATTLE CONSCRIPTION IN CONGRESS 85 CHAPTER THREE: CONTESTING THE CONSCRIPTION ACT IN NEW YORK 127 CHAPTER FOUR: CONFLICT AND CONSTITUTIONALISM IN THE KEYSTONE STATE 174 CHAPTER FIVE: THE HIGH WATERMARK FOR CONSTITUTIONAL CONSERVATIVES: KNEEDLER V. LANE 205 CONCLUSION: POST-1863 JUDICIAL BATTLES AND 20TH CENTURY CHALLENGES TO CONSCRIPTION 254 BIBLIOGRAPHY 304

27 citations

Journal ArticleDOI
TL;DR: Kleinerman et al. as discussed by the authors showed that the importance of political necessity as the basis for "prerogative" over and against both popular approval and unlimited constitutional powers can also provide an alternative perspective and even an antidote to the current scholarly debate concerning whether constitutions are better preserved by "Jeffersonian" or "Hamiltonian" prerogative.
Abstract: In the wake of the Bush administration's use of executive power since 9/11, Abraham Lincoln's executive actions during the Civil War have received more attention than usual. Typically associated with the idea that constitutions should recede in favor of the rule of one during crisis situations, Lincoln's actions have been used on one side as the implicit and even explicit basis of presidential claims to increased power and on the other side as the example par excellence of what presidents should not do. Taking issue with this conventional interpretation and continuing the more recent scholarly recovery of Lincoln's profound concern for constitutionalism, I explicate the principles that guided Lincoln's use of executive power during the Civil War. By drawing out the importance of political necessity as the basis for “prerogative” over and against both popular approval and unlimited constitutional powers, I show how this principle also provides an alternative perspective and even an antidote to the current scholarly debate concerning whether constitutions are better preserved by “Jeffersonian” or “Hamiltonian” prerogative. Lincoln's example also shows us that we should not legalize, regularize, or institutionalize those powers that may be necessary to avert a crisis. Perhaps most importantly, Lincoln's statesmanship teaches us that constitutions can moderate and limit discretionary executive power only if the people learn an attachment to their Constitution that does not come naturally to them.Benjamin A. Kleinerman is assistant professor in the Department of International Studies at the Virginia Military Institute (kleinermanba@vmi.edu). His current research focuses on the relationship between executive power and constitutionalism. The author thanks Bernard J. Dobski, Steven Kautz, and M. Richard Zinman for commenting on earlier versions of this manuscript, and the anonymous reviewers for their helpful comments.

26 citations