I read Geoffrey Stone’s Perilous Times a couple of years ago. Daniel Farber’s Lincoln’s Consitution has a similar focus, but covers only the Civil War rather than the entirety of the history of civil liberties during troubled times. In addition to examining whether the Lincoln administration’s curtailment of civil liberties during the Civil War was constitutional, Farber also looks at the question of secession and use of military force against the south. Farber’s conclusion is that most of Lincoln’s actions were constitutional.
For the most part, Farber’s analysis was understandable to this non-lawyer. Irrespective of his personal views on the proper framework for constitutional analysis, Farber looks at each of the situations under several of the analytical paradigms currently advocated: originalism, textualism, and that of the constitution as a living document. The book is somewhat dismissive of textualism, at least as practiced today. The drafters didn’t nit-pick every word or phrase for exactness, so such analysis done today isn’t very valid according to his writing. His greatest focus is on analyzing in terms of what the framers and the country originally understood the document to mean. One big caveat though is that even then many of the clauses were ambiguous, by design or by inattention. Farber writes that we shouldn’t ascribe detailed meaning to the framers when it didn’t necessarily exist at the time.
As to the question of secession, Farber writes that under all but the most radical of interpretations, the south did not have the right to secede. The union was meant to be perpetual; no clauses for secession were included. Under standard rules of contracts, entering into one has to be universal, but unless the terms for abrogating it are written into it, other parties must approve a release. So unless the south got the permission from the entire country, it could not secede from the U.S. or de-ratify the constitution. He also dismisses a right of revolution as the south had not endured any indignities from the U.S. or the north. In fact, until Lincoln’s election is had exercised a great deal of control over U.S. policy. At best, international law and norms meant the south could enter into negotiations to secede. It did not. It unilaterally seceded and then started the war by firing on Fort Sumter.
James Buchanan, the president prior to Lincoln, came to the conclusion that while the South had no right to secede, under the Constitution he could not use the military to stop them absent a congressional declaration of war. So he did nothing. Lincoln, and Farber in retrospect, disagreed. To them, the south clearly had started insurrection, which gave the President the right to defend the U.S.
Civil liberties were more questionable though. Lincoln ignored a writ of habeas corpus, summarily arrested opponents, and shuttered newspapers critical of the war. Not all actions did he take himself. Some were attempted by his subordinates, but Lincoln usually supported those actions after the fact, at least publicly. In some cases these might have been legal, such as the preventive arrest of southern sympathizers. Others, such as the shuttering of newspapers critical of the war probably were not. Most of the time Lincoln was pretty careful to not abuse his authority.
One nice thing Farber did in summation was to look at Lincoln’s evolving theory of the rule of law, which was his ostensible reason for prosecuting the war. While he was against slavery, he was fine with a decades long slow death for the practice. He fought the war to preserve the rule of law and to preserve the United States. But his ideas for what that meant changed over his lifetime.
Having read Perilous Times, I thought the chapters on civil liberties were somewhat redundant to my earlier reading. However, I learned some things from his examination of secession and the sources of the theory of the unitary executive. (He doesn’t embrace that theory.)
Interesting, but not really enough a-ha
moments to rate it as a must-read. A worthy read, definitely.
One blogged review:
Title: Lincoln’s Constitution
Author: Daniel Farber
Imprint / publisher: University of Chicago Press
Format: Hardcover
Length: 200 p.
Publication date: 2003
ISBN-10: 0-226-23793-1
Subject: Lincoln, Abraham — 1809 – 1865 — Views on the Constitution
Subject: United States — Politics and government — 1861-1865
Subject: Constitutional history — United States
LC classification: E457.2.F216 2003
