Yale Journal of Law and the Humanities
- Review of Daniel Farber, Lincoln’s Constitution, University of Chicago Press, 2003.
At a moment in our history when thoughtful people in both blue and red states consider it a crisis that a deeply conservative President of the United States, buttressed by a small majority triumph at the polls, may have the opportunity to appoint three or four new justices to the Supreme Court and dozens more to the lower federal courts, a close examination of Abraham Lincoln’s constitutional views during the Civil War is timely. Daniel Farber, a professor of law at the Universities of California, Berkeley and Minnesota, claims such timeliness because, he writes, "we can use Lincoln as a test of modern constitutional doctrine, and use modern doctrine as a medium for assessing Lincoln’s actions" (p. 2). Farber is very much interested in placing legal analysis in historical contexts, but he is equally concerned with the present. His questions and assumptions, indeed his very motivation in examining Lincoln’s constitutional performance, stem from concern about the current revival of state rights doctrine on the Supreme Court. "Secession is dead," declares Farber, "but not the dispute over state sovereignty" (p. 27).
In this insightful and well-crafted mixture of past and present, we get not only a careful look at Lincoln’s legal actions in the ultimate national test, but a sustained argument that we are in danger of a true take-over by latter day proponents of a brand of federalism that would return as much power as possible to the states. The real target of this work of legal scholarship is the state rights coalition on the Supreme Court, led in Farber’s view, by Clarence Thomas. Thomas represents a constitutional interpretation, according to Farber, not far distant from John C. Calhoun and Jefferson Davis. Absent slavery and any hint of racial equality, Farber sees little difference between Thomas, as well as his mentor, Antonin Scalia, and the Old South’s principal intellectual and political leaders.
Writing for the four-judge dissent in the Term Limits case of 1995, Thomas argued that the majority misunderstood the "reserved powers" clause in the Tenth Amendment. His most basic "first principle," said Thomas, was that the "ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole" (p. 27). Had a constitutional-intellectual ancestor of Clarence Thomas, a black son of sharecroppers, been President of the United States in 1861, the Confederacy, and its treasured slave society would likely have won its national independence. Moreover, the desegregation measures of the Supreme Court, beginning with Brown v. Board in 1954, would never have occurred in Thomas’s constitutional universe. And how could the Civil Rights Act of 1964 have been enacted over the "consent" of states that likely would have vehemently opposed it? In 1964, when President Lyndon Johnson warned that by standing for federal civil rights legislation as they did, Democrats might be, in effect, playing defense for the coming decades, he could not have imagined that among their staunchest foes would be an African American on the Supreme Court who seemingly owes his career to that very enactment. But irony has always been one of the best weapons we have in understanding American history, and it may ever be thus.
Farber is a careful and measured thinker, and he does seem to have a healthy sense of irony. Unlike the "originalists" among constitutional scholars, who come under scorn from Farber, this author does not expect a principle such as "rule of law" to have a crystal clear definition, nor the question of sovereignty’s ultimate "location" to have a simple answer. No idea stays the same through time in Farber’s world view. To conservative constitutional purists employing rigid "first principles," Farber seems to say: do some good history first! As a historian of the Civil War era, a time of great trauma and revolutionary change, I can only say bravo.
In the early republic and antebellum eras, the biggest constitutional challenge was the matter of federal supremacy. The extent of federal power, contends Farber, not an abstract debate over the nature and location of "sovereignty," was the great question of the day. And he seems very worried that the great question of our own day may soon be whether a growing number of four current justices on the Court, led by Thomas, will continue to embrace essentially a version of Calhoun’s idea that the United States is not a real "nation" at all, but a "compact" of states free to endorse local control over abortion rights, the definition of marriage, the character of civil rights, and the place of religion in public life. Farber, of course, could not know our political condition in the wake of the 2004 election when he wrote his book in 2003, but as he delves into Lincoln’s legal challenges, his demand for a conscious mingling of past and present is worth our attention.
When Farber wears his historian’s hat he is generally a good guide through the thickets of Constitutional law and thought in the Civil War period. He will leave some readers a little puzzled over whether he sees federalism or the expansion of slavery as the deepest cause of the war. He should move back the "positive good" defense of slavery from the 1850s to much earlier — the 1820s and 1830s. He might want to reconsider his embrace of the cliché that "history is written by the victors" (ex-Confederates showed us otherwise by the late nineteenth century). And it is not altogether clear how Farber can square Lincoln’s acknowledgement of the "right of revolution" (p. 102) with his declaration that the "central idea of secession is the essence of anarchy" (p. 106). Yet, Farber is solid on most matters of context, including: President James Buchanan’s "impotent" view that secession was wrong but the federal government powerless to stop it; southern secession as deeply rooted in the defense of slavery; the Merryman case, the suspension of Habeas Corpus, and Lincoln’s defiance of Chief Justice Roger Taney; the Clement Vallandingham free speech case and Lincoln’s "blunder" in arresting this Confederate sympathizer who was ultimately banished to Canada because a prosecution was untenable; and the general chaos of the opening months of the war as well as the tremendous changes in conceptions of executive authority during a war of unprecedented scale.
Farber is concerned primarily with three of Lincoln’s constitutional choices: the position that secession was illegal and the decision to use "coercion" against the seceded states; the emancipation of the slaves by executive order and as a war measure; and the suspension of the writ of habeas corpus in order to suppress disloyalty. Farber acknowledges that secession does have a logical basis — a government could become so repressive that a state, or some other group, might seek withdrawal from the nation as an act of "revolution." But Farber also strongly supports Lincoln’s actions in defending the Union by arms. In his view, 1861 was not 1776. The American malcontents of 1776 struck for their own "inalienable human rights" with only a "reluctant" connection to slavery, argues Farber, whereas the rebels of 1861 (as states) "invoked their inalienable human rights in defense of their very ownership of slaves." By this reasoning, Farber seems to conclude that secession as the right of revolution depends of the legitimacy of the cause. Whether read as hair-splitting or as close constitutional analysis, one ought to remember that the significance of any exercise of state rights rests in the cause or purpose to which it is employed.
Farber believes Lincoln had ample legal authority to wage war to suppress secession and the Confederacy, and he employs Alexander Hamilton and James Madison as authorities. Indeed, Madison may be Farber’s real hero on all matters constitutional, especially for his staunch opposition to any form of secession. He places Lincoln’s use of force on the "solid ground" of Madison’s Federalist 41, where the Virginian argued that it would be folly to "oppose constitutional barriers to the impulse of [the nation’s] self-preservation." And Hamilton rescues Lincoln in Federalist 23 by declaring that once the existence of the government is threatened, "there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy …" (p. 136). One cannot escape the sobering realization, however, that the ultimate answer to the question of which idea would prevail in America — "secession on demand" or "perpetual union at all costs" — came only in blood (p. 110).
As a legal war measure, Farber interprets Lincoln’s Emancipation Proclamation of January 1, 1863 as "clearly justified" (p. 156). Farber seems a good deal less interested in this great enactment than in questions of free speech and individual rights. Emancipation was a seizure of property in time of war and an "extraordinary use of executive power" (p. 152). Farber views Lincoln and emancipation through the lens of recent scholarship — an interpretation of the president as a pragmatic thinker who grew with events and time to see freeing the slaves as both a practical and a moral necessity for winning the war. But, unfortunately, as a constitutional problem it just does not garner the same attention in Farber’s mind as those measures for which some have accused Lincoln of "dictatorship."
Farber contends that accusations of Lincoln as a "dictator" are "overblown." Lincoln, he believes, was a "democratic leader," but one who "often operated without explicit legal sanction" (p. 115). In the opening months of the war, under the emergency of putting down a "domestic insurrection," Lincoln did expand the army enormously, authorized extraordinary expenditures, closed the mails to some disloyal publications, ordered a naval blockade of southern ports, and suspended the writ of habeas corpus in order to control dissent, all initially without Congressional approval. Many of these actions, Farber suggests, were "akin to lawmaking" (p. 120). After an extended discussion of the relative "confusion" during the first eighty years of American constitutional discourse about the precise limits of executive power, Farber defends Lincoln on all counts save one — violation of individual rights to free speech and the extent of military arrests and trials for dissent. Lincoln’s closing of the New York World, a Democratic party newspaper, and the small minority of the 13,000 people arrested for disloyal speech who were northern, non-combatants (jailed for their opinions), says Farber, "cannot be defended" (p. 174).
In the end, though, Farber asks for careful attention to context, and he seems to support the open-ended notion that sometimes presidents are justified in violating some laws in the interest of "necessity." Some parts of Farber’s conclusion fall into lame language. Lincoln’s "mixed record" on civil liberties, he contends, is "perhaps understandable" and "not at all bad." One comes to expect more directness from a scholar who has offered such careful analysis of constitutional language and spirit. Moreover, Farber identifies two "lessons" from Lincoln’s encounter with the Constitution in the Civil War. One, that all such analysis must be placed firmly in history — the "struggles of their times" (p. 196). And two, in all such great constitutional crises, we must ultimately rely on the "indispensable role of character" among our leaders. Character? Farber resolves that in Lincoln’s "ability to combine ruthless pragmatism and a deep fidelity to principle, he may have been unique" (p. 199). Well, if Lincoln was unique, and we have come to generally trust him in retrospect, how then do we hope for other presidents who are likely never to measure up to the sad-faced genius from Illinois?
Is Farber’s scholarly judgment in the end based on trust in character? This is a sobering prospect in the context of our own time. With intelligence, learning, and a deep sense of history, Lincoln could hold two profound ideas in his head at once, and it probably sustained him through his unprecedented challenge. He was the one who, while young in 1838, famously said "let reverence for the laws… be the political religion of the nation." Yet, in the darkest times of the Civil War twenty-five years later he could declare "liberty to all" and a "new birth of freedom" his highest principles, the Declaration of Independence, in effect, the greater guide than the Constitution itself. The rule of law and natural rights — two timeless traditions — march together in America. We need more than character to find or keep their balance.
- David W. Blight, Class of ’54 Professor of American History, and Director, the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at Yale. Professor Blight is the author among other books, of Race and Reunion: The Civil War in American Memory.