America loves its outlaw heroes. We love them when they are rebellious misfits like Bob Dylan, Holden Caufield and Huck Finn. We also love them when they are action heroes, like Batman and Dirty Harry. In our political life, some of our greatest figures have been outlaw heroes like Martin Luther King, who spoke truth to power and effected a change that America will wear in its crown of glories.
By outlaw heroes, I do not mean criminals or gangsters, people who break the law. I mean people who see gaps in the law, holes in the law, alternatives to the law, people who understand that there are times when the arrangements we have created for ourselves are stopping us, limiting us, crushing us with their illogic and their ineffectiveness. In America, it’s notable that our greatest presidents have been outlaw heroes.
Abraham Lincoln, for example—the man who is honored as the president who saved the union Except that Lincoln didn’t save anything. More properly, he transformed it, by entering a broken political system and combating the crisis with powers previously unrecognized in the system. The results were astounding. By the end of the war, the institution of slavery was finished. The rich and powerful class of slaveholders who had dominated the country since its inception was eliminated, the source of their wealth. Black Americans were accorded citizenship. And the union? It was intact as a legal entity, but it was destroyed it as a concept. The Civil War made the idea passé. We were no longer states that had entered into a union; instead, we were a country, a nation, led by a president and a central government stronger than it had ever been. And it was Abraham Lincoln who shattered the roadblock of inadequate laws and dysfunctional politics and inadequate options that had stymied lesser men.
When the southern states began to secede in 1860 and 1861, President Buchanan was flummoxed. The Constitution is silent on the question of secession—doesn’t say a state can, doesn’t say it can’t. Buchanan studied the issue, and decided that a state could not secede, but that a president had no authority to stop it. A perfectly logical, perfectly ineffectual answer.
Lincoln found the power he needed, in the presidential oath of office that is written into the constitution, in his solemnly sworn obligation to preserve, protect and defend the constitution. From that, he found the authority he needed to raise troops, establish martial law, spend money, and do what needed to be done to combat the emergency. None of those powers were explicitly his, but he acted.
Later, he suspended habeus corpus in order to break up rebel conspiracies. Lincoln clearly violated the constitution when he did this. But his reasoning was unassailable. “[T]he whole of the laws which I was sworn to [execute] were being resisted…in nearly one-third of the states. . . . Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”
In coming days, President Obama may have his own outlaw hero moment. If the rabid right wingers in the House of Representatives–a gerrymander-created and protected minority segment of one House of Congress– refuse to raise the debt ceiling, as they have threatened, America’s creditworthiness may be endangered. The harm to our economy would be literally incalculable, possibly devastating. Our entire way of life could be destroyed. As Sean Wilentz demonstrated in the Times yesterday, Obama has a completely legitimate way to stymie that dangerous gambit, by continuing to pay bills as provided under the 14th amendment.
The Republicans who are threatening the debt ceiling are nearly as dangerous as the secessionists who once wanted to pull the country apart. Obama reportedly has some misgivings about this 14th amendment gambit, but he should ask what would happen if the government collapses. Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
Time to find the path through the impasse, Mr. Obama. Time to be an outlaw hero.