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:

• Brian Flanagan excerpted at Legal History Blog

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

I decided to read this book on the relationship between the Supreme Court and the Constitution during my days in jury duty. However, I only served 2½ days and a fair portion of that was in voir dire (not waiting in the jury assembly room), so I only read limited amounts. One good thing that came of my short stint as a juror who never was a juror (the prosecution struck me twice from juries) was finding out that Elliott Bay Books gives people serving jury duty a 20% discount if you show them your badge when you pay. That’s a hell of a deal and I took great advantage of it. Sadly, my stack of unread books is growing way out of proportion of my ability to read them. But I digress… I am to review this book by Tinsley Yarbrough.

First off, I think the book’s subject matter is too broad to be effective. Ninety percent of what the U.S. Supreme Court does is related to the Constitution. I’m not exactly sure what I was looking for in this book but I finished a lot of it by skimming repetitive, long, dry sections. About all I came away with is that the Rehnquist court has not begun an all out assault on everything liberals hold dear. However, they are frequently whittling away at important protections we enjoy as citizens, less frequently acting as buffers against the tyranny of the majority from Congress and the chutzpah of the executive. Also, as the Rehnquist court had another five years to go at the time of publication (2000) I think Yarbrough missed out on a significant chunk of the court’s work. What may not have been an all out assault still slowly and inexorably is reaching the same position.

Chapters 1 and 2 cover the background and confirmation of the various justices that make up the Rehnquist court, and also includes some of the background machinations between the justices. Despite it’s lack of policy analysis, I found the second chapter on the inner workings of the court to be the most informative. I’ve read in real time the decisions of the court, so the succeeding chapters wouldn’t provide a lot of new information. I expected them to pull things together and show trends, but this early chapter had information to which I was not previously privy. Still, it’s use is limited as I don’t practice before the court, nor do I see myself becoming a court-watcher to the degree where I could use such insights to predict outcomes.

The following chapters cover government power, the double standard of strict scrutiny (by previous courts) of economic regulation but laissez faire treatment of non-economic protections. unenumerated rights, religion, freedom of expression, criminal justice, and equal protection. Other than the double standard chapter, I learned little. Unfortunately, Yarbrough buried detailed trend-spotting among reams of case analysis. I like the format taught by my 7th grade English teacher: tell us what you are going to tell us, tell us, then summarize what you told us. Yarbrough doesn’t really do that. I found the case analysis excessive. I could go to other sources for individual case analysis. What I would dearly love is to see how it fits together, I didn’t get that. Not that the case analysis is incorrect or bad. Just not interesting to me.

In the end, I didn’t come away with any sense of relief that the Rehnquist court is in good hands. It seems that many of the conservative justices, while well-intended, are looking for black and white certainty where it doesn’t exist. If the constitution were black and white, needing no interpretation, then the Supreme Court would be unnecessary. But no text contains no ambiguity. The more you legislate all details, the less you lose track of broad principles. The more focus on broad principles, the less detail is specified. When the details (legislation promulgated by Congress and the states, and regulations by the executive) seems at odds with the broad principles in the constitution, the conservative wing seems to allow it because of the inherent ambiguity of the broad principles and their disdain for court-imposed legislation. Yarbrough just doesn’t really seem to put it all together in the book, either on the big trend or on any of the individual topics.

Title: The Rehnquist court and the Constitution
Author: Tinsley E. Yarbrough
Publisher: Oxford University Press
Format: Hardcover
Length: 272 p.
Publication date: 2000
ISBN-10: 0-19-510346-7
Subject: United States Supreme Court
Subject: Rehnquist, William H., 1924-
Subject: Judicial review — United States
Subject: Law and politics
LC classification: KF8742. Y37 2000