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Did Lincoln Violate the Constitution?:
A Review of Daniel Farber's Lincoln's Constitution
By RODGER D. CITRON
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Friday, July 18, 2003

For students of constitutional law and history, Abraham Lincoln is perhaps our most compelling president - for he wrestled, and forces us to wrestle, with some of the most fundamental, and momentous questions of constitutional law.

In his slender volume Lincoln's Constitution, Daniel Farber, a law professor at the University of California, Berkeley, and the University of Minnesota, takes on these very questions.

Did the Southern States, like the Founding Fathers, have the right to secede? Farber says no, though he also contends that the case for secession was not frivolous.

Did Lincoln violate the Constitution when, in his efforts to preserve the Union, he suspended habeas corpus, and in taking certain actions without Congressional authorization? Farber argues that nearly all of Lincoln's actions were permissible under the Constitution. Moreover, when he did infringe the Constitution, his trespasses were, at least, not egregious.

In Lincoln's Constitution, Farber offers a concise synthesis of the pertinent history, extended discussion of Lincoln's reasons for his actions, and elegant analysis of the relevant issues. For these reasons alone, the book is worth reading.

But Farber also goes further, to address the potential contemporary relevance of some of the issues that Lincoln face. Thus, he gracefully integrates into his discussion recent cases raising similar questions concerning civil liberties, federalism, and separation of powers.

Especially with civil liberties issues repeatedly arising, now that the war on terrorism is in progress, it may be instructive to look back at the constitutional questions Lincoln confronted so long ago.

The Unpersuasive Case For Secession - and the "Compact Theory"

In evaluating the case for secession, Farber traces the debate over state sovereignty back to the Framers' era. Although the Framers did not have a "clear consensus" about "the status of the states before the Constitution," the author shows that it nevertheless is clear that they sought to enhance federal power, and in fact curtailed state autonomy.

In his opinion for the majority, Justice Stevens contended that since the Constitution limited state sovereignty, states could not interfere with the "direct link" that representation in Congress provided "between the National Government and the people of the United States."

In dissent, Justice Thomas - joined by Justices Rehnquist, Scalia, and O'Connor -insisted that, on the contrary, the term limits amendment was a permissible exercise of power reserved to the states. After all, "the people of each State retained their separate political identities" under the Constitution, and thus they could choose to regulate the terms for which their Congresspersons served.

Farber parallels the dissenters' argument with the case for secession presented by Jefferson Davis in the Civil War - noting that both embrace the "compact theory" of states' rights. This theory holds that the Union was a treaty-like compact among the states that joined it - one that any state could leave, in the same way that a nation might withdraw from a multinational treaty.

Farber himself takes strong issue with the "compact theory." He points out that the Constitution replaced "a regime of multilateral negotiation with the democratic rule of law." In the new regime, federal legislation was "'the supreme law of the land[,]'" and the new system featured "nationwide democratic institutions and authoritative dispute resolution by the federal courts." Given these features, Farber contends, the Constitution must be seen as far more than a treaty among the states.

Farber also makes a more specific case against the legality of secession, citing the structure of the Constitution and arguments made by James Madison in the Federalist Papers. He concludes, based on these sources, that once bound by the Constitution, individual states did not enjoy the unilateral right to withdraw from the Union.

Accordingly, on the legal merits (as well as on the battlefield), Farber makes clear that the correct party prevailed on the secession issue in the Civil War.

The Case For the Constitutionality of Lincoln's Conduct Of The War

Due to the unprecedented nature of the crisis caused by the Civil War, Lincoln was compelled to exercise executive authority in a remarkably broad manner. Inevitably, his actions led to clashes with other branches of government over the assertion of his authority.

Farber reviews a number of actions taken by Lincoln in response to the military crisis - such as "calling up the militia, deploying the military, and imposing a blockade." In each case, he concludes that Lincoln either acted in accord with his authority under Article II of the Constitution, or soon (albeit subsequently) obtained authorization from Congress after acting - rendering his constitutional infringement comparatively slight.

Farber does acknowledges that, on occasion, the actions of Lincoln or the military were excessive. As examples, he cites measures to suppress free speech - and in particular, a case in which a gentleman opposed to the Civil War was convicted and sentenced to death for what may have been no more than associating with another individual who wanted to take armed action against the Union. After the war, in Ex Parte Milligan, the Supreme Court granted the gentleman's habeas corpus petition.

Learning From Lincoln: How to Wage War And Still Respect the Constitution

Lincoln's Constitution concludes with a brief discussion of the current relevance of the constitutional questions surrounding Lincoln's Presidency.

Farber believes that Lincoln's conduct of the war demonstrates the need for a strong federal government in wartime. But he also contends that it is strong evidence that we need not circumvent the rule of law, or ignore constitutional protections, in dealing with such a crisis.

During our greatest constitutional crisis, Farber demonstrates, the nation was extremely fortunate to have Lincoln as its leader. He recognized the significance of the challenge posed by secession; acted decisively in responding to it; and nevertheless maintained a sense of perspective about the proper institutional role of the presidency.

In the midst of the war on terrorism, at least one disputed issue in the Civil War - how to balance individuals' constitutional rights against governmental claims of national security - remains quite germane. Regardless of one's political affiliation, it is undisputed that Lincoln set the bar rather high for his successors.


Rodger D. Citron is an attorney in Washington, D.C.