Now, if you will excuse me, I have sequencing data to look at, which may someday prove plenty thrilling in their own right. Alas, however, I am currently unable to make happy faces with transposons. That may have to go onto the to-do list. Yes, there are a number of incomplete and underdeveloped positions in it. One, it's a rough product; Two, we're only allowed two pages, dagnabbit--you're not exactly looking at the next Sowell, you know. And yes, I am completely incapable of writing decent conclusions. Always have been, probably always will be. Deal :)
Does the Constitution Allow Interpreters to Entertain the Idea of Necessity?
Lincoln’s Argument in the Letter to Erastus Corning and Others, the Letter to James Conkling, and the Letter to Albert Hodges
His error is in claiming that the language of the writ suspension clause can be extrapolated to cover any action regarding any wartime situation in which “disloyalty to the Union” is suspected. That argument from necessity is constitutionally unsound and incorrect. While I might agree or be persuaded to agree that powers may be a little broader in wartime, his argument oversteps
constitutional limits outright in employing the writ suspension language to defend other actions not obviously connected to writ suspension itself, such as the heavy-handed treatment of or silencing of newspapers. Rather than so blatantly stretching that clause, he must seek support from elsewhere in the document, if it can be found. However, in the Conklin and Hodges letters, his argument from necessity for the Emancipation Proclamation is much more constitutionally sound.
Therefore, we see that an argument from necessity can be a constitutional argument. Put perhaps more completely, such an argument is not necessarily anti-constitutional in and of itself, nor is it one the mere consideration of which automatically risks grievous injury to the constitution. There is nothing in the constitution itself to indicate that necessity cannot be a consideration under at least some circumstances. In fact, the document itself entertains the concept of necessity, albeit on a far more mundane scale, in the Necessary and Proper clause; more importantly, the constitution considers necessity as a valid factor in what are all essentially situations of dire emergency.
Harboring great concern, even innate suspicion of an argument from necessity is valid, defensible, and highly compatible with our need to be jealous guardians of liberty. It is not, however, valid as a final pronouncement. As the constitution itself hints, the question is one of limits. Again, the
constitution does not rule out necessity entirely. The words of the writ suspension clause clearly indicate that the Founders understood that there will indeed be instances of severe national emergency, and that in such situations, certain actions taken out of necessity are entirely valid and justified. (Or that there could be such instances: ideas, attitudes, and reactions of our own
times as to whether or not nation-threatening situations actually exist or can truly exist line up remarkably well with those expressed in Lincoln’s.)
Whether an argument from necessity is a constitutional argument depends on what action or position is being argued, as well as the constitutional provision(s) at issue; there is no one-size-fits-all answer to that question, as demonstrated by the letters to Corning, Conklin, and Hodges. Lincoln instinctively understood this, and the concept of constitutional constraints, as evidenced by his
statement in the letter to Hodges:
I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. …And yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. …I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery.
