Lincoln's Constitution

"A timely and important book, which should provoke fruitful discussion of enduring issues of civil liberties and judicial philosophy."—Richard Posner, New York Times Book Review

"In his illuminating and unexpectedly timely book, Daniel Farber sets out to evaluate Lincoln's wartime decisions by taking seriously the legal arguments that Lincoln offered to justify them. By and large, Farber concludes, Lincoln did quite well in respecting constitutional boundaries during the greatest constitutional crisis in American history.…Despite the great legal and technological differences between the scope of federal power today and in Lincoln's time, one lesson emerges clearly from Farber's narrative, and it is the danger of putting too little or too much faith in law during times of national emergency."—Jeffrey Rosen, New Republic

"Dan Farber is one of the most significant constitutional scholars working today. On any subject of constitutional law or interpretation, I'd value his insights. In Lincoln's Constitution, Farber examines the greatest constitutional crisis in American history—state secession and civil war—and explores the legality of Lincoln's response to it. From his deft analysis of that dark time, Farber draws illuminating insights for constitutional issues that remain with us, such as states' rights, executive power, and civil liberties in times of national crisis. Farber makes constitutional history resonate for today's issues."—Edward J. Larson, Russell Professor of History and Talmadge Professor of Law, University of Georgia, and author of Summer for the Gods

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[This interview was conducted in April 2003.]

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An interview with
Daniel Farber
author of Lincoln's Constitution

Question: The Civil War raised a multitude of constitutional issues, and we only have space to touch on a few of them here. Nor is there space, unfortunately, for the detailed discussions that so richly inform the book. With those caveats in mind, how about starting with the state versus federal power issue? Secession may be a dead issue constitutionally, but state sovereignty is a live disagreement, resurfacing recently in the Supreme Court when it narrowly stuck down an Arkansas law mandating term limits for its federal representatives. What was Lincoln's view of state sovereignty? Why is the issue still with us? Why wasn't the state sovereignty issue settled by the Civil War conflict?

Daniel Farber: The Gettysburg Address is very revealing. Lincoln dated the birth of the nation to "four score and seven years ago." If you do the arithmetic, that's not the framing of the Constitution; it's the Declaration of Independence. Lincoln's view was that the American nation came into existence at the moment of independence, and that state governments owed their existence to this act of nationhood. He was dubious about state sovereignty, and pointed out that the word sovereignty doesn't even appear in the Constitution. Why is the issue still with us? Primarily because, in their effort to strengthen the role of the states in the federal system, some of today's justices have fastened on the idea of state sovereignty. In the process, they have reopened questions about the nature of the Constitution that many people thought were settled long ago. We don't know what Lincoln would have thought about the specific results in these cases, but we do know what he thought about the general theory.

Question: The power of declaring war resides, according to the Constitution, in Congress. Yet Lincoln essentially declared war by ordering the blockade of Southern ports. How did the Supreme Court react to that? Did that start us on the road to the "imperial presidency," which Congress finally tried to stop with the War Powers Resolution in the post-Vietnam era?

Farber: Lincoln's actions were actually fairly easy to justify under the Constitution. When the Constitution was being framed, the drafters deliberately gave Congress the power to declare war (rather than to "make" war). They wanted the president to be able to act on his own if the country was attacked. In Lincoln's case, a third of the country was in hostile hands, and a U.S. fort had been attacked and taken by hostile troops. Rather than acting like an imperial president, he then turned to Congress for approval. Ironically, his actions came closer to complying with the standards of the War Powers Resolution, over a century before it was passed, than most presidents have done in the modern era.

Question: Slavery was constitutional until the passage of the Thirteenth Amendment, so the Emancipation Proclamation actually amounted to a federal seizure of private property. How did Lincoln legally justify the proclamation?

Farber: Under international law, which the Supreme Court of the time had recognized as applying to our government, a nation at war is entitled to seize the property of its enemies whenever doing so is needed for the war effort. Early in the Civil War, the Court had held that this doctrine was applicable to Confederate shipping. Lincoln had strong arguments that the South could only be defeated by abolishing slavery. So he was able to rely on his war powers as commander-in-chief to justify this seizure of Southern "property." He was also deeply opposed to slavery as a moral matter, but he did not believe that this moral belief was a legal basis for acting.

Question: Lincoln wielded unprecedented presidential power. Solely on the authority of his office he suspended habeas corpus, jailed dissidents, and shut down newspapers. Was this legal? Did Lincoln go too far?

Farber: He did go too far at times, although it was more often his subordinates who went too far, for instance, General Butler in New Orleans. Another example was the blundering General Burnside, whose General Order No. 38 led to the infamous Vallandigham case. As to Lincoln himself, his suspension of habeas corpus was pushed beyond its emergency justification; some actions against the press cannot really be defended; and military trials were improperly used in the North. There were also some more technical constitutional violations involving the procedures for spending money and expanding the military at the beginning of the war. On the whole, however, even many of Lincoln's most dramatic actions (such as the Emancipation Proclamation) were actually constitutionally sound.

Question: Could one make the argument that Lincoln even defied a decision of the Supreme Court? Given that this seems unimaginable to us now, how is it that Lincoln managed to do this? Was this the only time in U.S. history that the president has taken this sort of liberty?

Farber: In the early days of the war, Lincoln suspended habeas corpus because of the threat that rebellion in Maryland would cut Washington off from the rest of the country. Chief Justice Taney (who was acting independently of the rest of the Supreme Court) said that only Congress could suspend habeas (though Congress wasn't in session), and ordered Lincoln to release one of the prisoners. Lincoln's refusal is probably unique in American history. There's a possible technical legal defense of Lincoln's refusal, which I discuss in the book. More fundamentally, though, Lincoln's position was that suspending habeas corpus was essential to the survival of the country. This argument that circumstances justified disobeying the judiciary sounds radical but it was actually quite limited—Lincoln pointed to the extreme threat to the nation posed by secession, and he also made it clear that he was ready to answer for any violations of the law if Congress didn't back him up.

Question: As this interview is taking place, the war in Iraq is winding down, and we are closing the latest chapter in what seems to be an endless state of war for the country since 9/11. Civil liberties have been curtailed in numerous ways in the past year and a half, including the imprisonment of both citizens and noncitizens without the usual constitutional guarantees and the creation of military tribunals to try some of these individuals. Lincoln took similar actions during the Civil War. Is that precedent sufficient for our present situation?

Farber: The circumstances of the Civil War were so unique that it's hard to generalize. Some of the actions of the Bush Administration seem to be supported by Civil War precedents, such as military trials for our citizens who are captured in the theater of war while serving in an opposing army. On the other hand, even suspects detained by the military during the Civil War generally did remain in contact with lawyers, friends, and family. For example, the most famous case of executive detention, John Merryman, became the subject of Chief Justice Taney's ruling only because he had been allowed to contact his lawyer, who then filed the habeas petition. Even in the critical early days of the Civil War, some concern with due process remained.

But in general, the analogies just don't provide much guidance. Lincoln's action took place within a matrix of legal understandings about warfare. Today's international terrorism is profoundly unlike the Civil War itself or the types of wars that were contemplated by the international law of the time. Today's actions may or may not be justified, but the justifications have to be found elsewhere than in Civil War precedents.

Question: Why did you write a book on the Civil War era?

Farber: My scholarly reason was that the Civil War was the greatest crisis in the history of the Constitution, so it raised the most fundamental questions about the nature of the constitutional system. A more personal reason was that, like many Americans, I'm fascinated by Lincoln and his era. It's amazing how much the issues of that time are still with us and how much the Civil War still resonates in our national memory. I grew up in "Lincoln country"—a hotel near my home still had a register where he had signed his name while riding circuit as a lawyer.

Question: Finally, a what-if question: would the Civil War ultimately have turned out differently if Lincoln had not exercised the presidential powers that he did?

Farber: Of course, we can only speculate, but I think Lincoln's exercises of power were probably crucial at two junctures. First, in the early days of the war, the North would simply have been unable to respond to Fort Sumter if Lincoln had not made such aggressive use of his powers. After all, his predecessor James Buchanan had been much more of a strict constructionist, and had basically sat by passively while the lower South left the Union. In contrast, Lincoln called up militia forces, expanded the regular army, declared a blockade on Southern ports, and suspended habeas to keep Washington from being isolated. Without these actions, the Confederacy would have won the war by default. Second, the Emancipation Proclamation may have tipped the balance at the end of the war, encouraging blacks to fight for the Union Army and discouraging British intervention on behalf of the South.


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Daniel Farber
Lincoln's Constitution
© 2003, 256 pages
Cloth $27.50 ISBN: 0-226-23793-1
Paper $14.00 ISBN: 0-226-23796-6

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