Lincoln's Constitution

Rating:
Summary: Popular legal history at its best
Review: "Lincoln's Constitution" first examines the Constitution as Lincoln found it at the beginning of his administration, with emphasis on state - federal relations, including the right of secession. Like most modern legal scholars, Prof. Faber clearly sides with Lincoln on this (and most other constitutional issues), but he is also careful to show that believers in states' rights and secession had good historical reasons for their views. With this background, the author then examines the Constitutional issues Lincoln faced in dealing with the unprecedented challenge of waging the Civil War. Here the focus shifts to presidential war powers and civil liberties in time of war. The author points out where Lincoln was right (in light of later precedents) and where he was wrong. Again, the views of both his supporters and his critics are fully examined. Finally, Faber clearly explains the relevance of all these issues for citizens of our own time.
Authoritative, up-to-date and balanced, "Lincoln's Constitution" is an essential supplement to J.G. Randall's classic (but now dated) "Constitutional Problems Under Lincoln."

Rating:
Summary: Great Book, but heavy history
Review: Being interested in the legality of Lincoln calling on troops to supress a domestic and not a foreign threat is appealing to me, since it was, what I thought, a violation of the powers of the presidency. Grabbing this, I thought it might bring aboveboard his actions. The title is somewhat deceieving in that the first 4 1/2 chapters discuss the founding fathers and their ideaology on various presidential powers and states' rights: intriguing to read, but way too much history of the constitutional debates. Finishing the book, I came to realize this was the author's way of defending his conclusions: that Lincoln did not abuse his powers and acted within the bounderies of constitutional law (though the last chapter discussing Lincoln's enfringement on Free Speech is hard to swallow as legal.) Still a fascinating read on the topic of constitutional power,that is just as important today as it was then.

Rating:
Summary: An interesting read with some problems
Review: My actual rating would be 3.5 if possible because the book is somewhere between good and very good. I've long been interested in the relationship between the Civil War and the Constitution. At its base the Civil War was a constitutional struggle between two ideologies: the compact theory and the popular theory of the nature of the Constitution. Ultimately this conflict could not be resolved through politics and war became necessary.

The best part of Farber's book is the first half dealing with secession. Farber examines the debate over states' rights and ultimately secession from the Founding up to the actual secession of 1860. By doing this, Farber shows that both sides of the debate had valid historical support for their theories, though he personally sides with Lincoln. All in all, this section provides a clear, concise presentation of secession and its history.

My problem with this book comes from Farber's intent to retroactively validate the constitutionality of Lincoln's presidential power. Lincoln used presidential power in unprecedented ways. Farber notes that the exercise of presidential power had been practically non-existent, with Jackson being the only user of it in a significant manner, and, even then, it did not approach Lincoln's actions. Farber presents Lincoln's theories and support that he gave for his actions, but he goes further and uses subsequent development in executive power to validate most of Lincoln's actions. The problem with this is that in many ways it was the experience under Lincoln that shaped our evolving understanding of executive authority. For example, the three cases from the late 19th century were clearly influenced by Lincoln and the Civil War experience. Farber quotes from Jackson's Youngstown concurrence, but he should consider Frankfurter's opinion. Frankfurter noted that our understanding of the war and presidential powers have been substantially influenced by historical development and political understandings outside of Court opinions. Fundamentally, our understanding of the president's power starts with Lincoln and using subsequent developments built upon Lincoln's actions to validate those actions is akin to using the Equal Protection Clause to retroactively validate the Emancipation Proclamation.

In its entirety, I found the book thought-provoking. It provides an interesting presentation of the constitutional issues involved in the Civil War and Farber supports his position compellingly, though I find holes in some of it.


Rating:
Summary: Highly Recommended
Review: The Civil War was, at its heart, a constitutional struggle. Although it was fought out on bloody battlefields, the causes for which the opposing armies risked their lives were starkly different views of fundamental legal principles. As the war raged on, Abraham Lincoln and Jefferson Davis came to symbolize the two sides of the constitutional debate, but their voices were only parts of a great chorus that, at various times, included Hamilton and Jefferson, Wilson and Madison, Clay, Calhoun, Webster, Jackson, Douglas, and even the irresolute James Buchanan. The overriding constitutional question, of course, was whether a state could lawfully secede from the Union. But this great question was intertwined with other fundamental questions: Did the Constitution create a national government for the benefit of "the people of the United States" or a mere league or compact of independent states? To what extent did the Constitution protect slavery and slave owners against the anti-slavery agitation of northerners? What action, if any, could the United States government (and particularly its chief executive) properly take in response to the military challenge of secession?
Farber addresses all these questions, and many more. He is a legal scholar with impressive credentials. More than that, however, he is a historian who understands the importance of using history in constitutional interpretation. In seeking answers to the thorny constitutional problems expressed in the war, he weighs the contrary arguments, explores their strengths and weaknesses, and offers nuanced analyses. He believes, for example, that the South's claim to the right of secession was wrong, but that it was not a frivolous claim. He believes that Lincoln's responses to the war were, on the whole, firmly within his constitutional authority, although he did occasionally stray into unconstitutional action. The remarkable fact about Lincoln's conduct of the war, Farber believes, is that the President was able to maintain a sense of perspective. He clearly saw that "the times demanded extraordinary measures," but he did not forget that "the long-term goal was not merely to crush the rebellion but to save the nation as a bastion of liberty."
Many academics are, to put it kindly, miserable writers who cannot escape the straight-jackets of narrowly departmentalized thinking and crabbed professional jargon. Farber is a refreshing exception. He writes clearly, concisely, and gracefully. His prose should be a model for all academic writers.
It has been a long time since I have enjoyed a book so much. I highly recommend "Lincoln's Constitution" to all who seek a greater understanding of the great legal principles that lay just below the surface of the bloodiest war in American history.

Rating:
Summary: Highly Recommended
Review: The Civil War was, at its heart, a constitutional struggle. Although it was fought out on bloody battlefields, the causes for which the opposing armies risked their lives were starkly different views of fundamental legal principles. As the war raged on, Abraham Lincoln and Jefferson Davis came to symbolize the two sides of the constitutional debate, but their voices were only parts of a great chorus that, at various times, included Hamilton and Jefferson, Wilson and Madison, Clay, Calhoun, Webster, Jackson, Douglas, and even the irresolute James Buchanan. The overriding constitutional question, of course, was whether a state could lawfully secede from the Union. But this great question was intertwined with other fundamental questions: Did the Constitution create a national government for the benefit of "the people of the United States" or a mere league or compact of independent states? To what extent did the Constitution protect slavery and slave owners against the anti-slavery agitation of northerners? What action, if any, could the United States government (and particularly its chief executive) properly take in response to the military challenge of secession?
Farber addresses all these questions, and many more. He is a legal scholar with impressive credentials. More than that, however, he is a historian who understands the importance of using history in constitutional interpretation. In seeking answers to the thorny constitutional problems expressed in the war, he weighs the contrary arguments, explores their strengths and weaknesses, and offers nuanced analyses. He believes, for example, that the South's claim to the right of secession was wrong, but that it was not a frivolous claim. He believes that Lincoln's responses to the war were, on the whole, firmly within his constitutional authority, although he did occasionally stray into unconstitutional action. The remarkable fact about Lincoln's conduct of the war, Farber believes, is that the President was able to maintain a sense of perspective. He clearly saw that "the times demanded extraordinary measures," but he did not forget that "the long-term goal was not merely to crush the rebellion but to save the nation as a bastion of liberty."
Many academics are, to put it kindly, miserable writers who cannot escape the straight-jackets of narrowly departmentalized thinking and crabbed professional jargon. Farber is a refreshing exception. He writes clearly, concisely, and gracefully. His prose should be a model for all academic writers.
It has been a long time since I have enjoyed a book so much. I highly recommend "Lincoln's Constitution" to all who seek a greater understanding of the great legal principles that lay just below the surface of the bloodiest war in American history.