78 e lusive v ictories
when the request came from a politician who might then owe the pres-
ident a favor.) Th e second justifi cation was his comparison of the
nation and its Constitution to the wounded patient and his limb. In the
latter example, habeas corpus served as the infected appendage that
needed to be excised so that the patient/nation might survive. Lincoln
asserted that those who dwelled upon his initial suspension of habeas
corpus in 1861 at a time when secessionist plots had already gone far
toward dismembering the Union failed to appreciate that with its
demise the Constitution and the liberties it protected would also cease
to exist.
Yet, irrefutable though Lincoln’s logic was, it begged other questions.
How many limbs should be sacrifi ced to save a life? And at what point
should the surgeon stop cutting, wipe clean the blade, and give the
patient a chance to recover? After the indispensable “procedure” to
rescue the Union in 1861, in other words, the second or third ones in
subsequent years might not have been necessary. Th e suspension of
habeas corpus nationally and the extension of martial law and military
tribunals were drastic measures, even if applied with a relatively light
hand. Moreover, as Lincoln demonstrated by the impact of his letters
answering his detractors, well-crafted words explaining war policies
such as emancipation and conscription proved to be highly eff ective in
rallying support for those policies. Persecution of war foes before mil-
itary tribunals, especially from 1863 onward, seems to have represented
a largely gratuitous exercise of executive power—that is, the surgeon
could have put down his knife sooner, at no risk to the patient.
One additional query suggests itself in response to Lincoln’s medical
metaphor, inspired by the modern era of medical review boards and
malpractice claims. To whom is the surgeon accountable for his decision
to operate? Th e assertion of extra-constitutional emergency powers by
a president will only be legitimated by the acquiescence of other
political institutions and actors. During the Civil War, Congress
repeatedly granted ex post facto approval to Lincoln’s actions, including
both his assumption of war powers assigned to the legislative branch
under the Constitution and his orders that curtailed civil liberties. Th e
Supreme Court, its standing weakened by the unpopular 1857 Dred
Scott decision, avoided confrontation with the president after his 1861
refusal to obey Taney’s order. When Lincoln extended the suspension of