Lincoln's Constitution.

• Author: Lerner, Craig S.
• Position: Book Review

LINCOLN'S CONSTITUTION. By Daniel Farber. Chicago: University of Chicago Press. 2003. Pp. ix, 240. $27.50.

The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. (1) The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant with death and an agreement with Hell." (2) Funded by industrialists who see no advantage in remaining in a tariff-free Union, Garrison rallies abolitionists in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, and New York, and the seven states formally secede from the Union. President Breckinridge convenes a Special Session of Congress on July 4, 1861, and proclaims: "The States have their status in the Union, and they have no other legal status. If they break from us, they can only do so against law and by revolution." (3) Before receiving authorization from Congress, Breckinridge calls up 75,000 troops and promises an invasion of New England. Also without congressional approval, Breckinridge suspends habeas corpus in "border states" like Pennsylvania and Delaware, summarily dispatching hundreds of citizens to prison.

In this hypothetical world, who would we say is in the right--the seceding states or the President? Would preserving the Union justify the slaughter of over 600,000 men, an assault on civil liberties, the devastation of the national economy, and the subjugation of one region of America to rule by the other for over a decade? If President Breckinridge had, on a blood-soaked battlefield, touted the war as a struggle to ensure "that government of the people, by the people, for the people shall not perish from the earth," would we be persuaded, or would we construe in such words a poetic inversion of the truth?

It is difficult for Americans today to take seriously the legal claims in favor of a right of secession. The cause of secession in 1860 became commingled with a defense of slavery, and our repugnance for that institution carries over into our rejection of secession. Furthermore, there is a sense among many Americans that our country has, on balance, had a salutary influence on global affairs. Any suggestion that we might have been better off as separate nations prompts a lecture on the United States' role in the twentieth century as an agent of freedom and the inevitable lament that, had America not been united, Germany would have won World War II. The argument, however flawed, (4) often suffices to cut short any argument over the merits of secession and Union.

As Daniel Farber (5) writes in Lincoln's Constitution, "we must ... put aside our revulsion against the Confederacy's proslavery aims. Whether the Constitution provides states with an exit option does not depend on the state's motivation[]" (p. 81). Farber's book (and this Review) are framed around two broad issues: First, did the South have the right--either under the Constitution or some higher law--to secede; or, as Lincoln argued, is "perpetuity ... implied ... in the fundamental law of all national governments"? (6) Second, were Lincoln's actions to preserve the Union consistent with the Constitution; or did he exceed the powers delegated to him as the chief executive? From a reviewer's point of view, Lincoln's Constitution is a frustrating book: Farber is generally balanced in his presentation of conflicting views, and measured and fair in his conclusions. How much easier my task would be if Farber had chosen sides, and declared himself in the camp of those who venerate Lincoln (7) or abhor him. (8)

Farber's book is, nonetheless, unmistakably the work of a law professor and not a historian. Farber is less interested in resolving historical disputes than in analyzing the legal questions that confronted Lincoln--principally of secession and civil liberties. Often, however, the legal questions are enmeshed in historical disputes, and in these instances Farber typically supplies citations to secondary literature for his controversial historical claims. And even this much is sometimes missing. Farber mentions in passing that "[General] Sherman's reputation [for brutality] is exaggerated" (p. 23), but he supplies no footnote to support a claim that would be received in certain quarters in Atlanta with astonishment. (9) Yet whatever fascination the Civil War may hold for us as citizens and historians, as lawyers there is a nagging sense of: so what? It has long since been decided that the states do not have a right to secede; (10) and whatever Lincoln's excesses as President, what's done is done. Farber's sensible response is that the issue of secession, while in one sense of antiquarian interest, still compels us to reflect upon the nature of executive power in times of crisis and to consider whether there are legitimate grounds to compel state participation in our federal government.

Lincoln's Constitution is an admirable summary of many of the constitutional arguments associated with Lincoln's name. Whether, under the Constitution, the states have a right to secede, or, correlatively, whether the National Government has the right to use force to prevent the dissolution of the Union are interesting questions. More provocative, however, are the moral and philosophical issues that lie behind the legal debate: when one people should be free to set up a new government, even at the expense of an existing one; and when, conversely, a nation should acquiesce in its dismemberment rather than compel a segment of the population to remain against its wishes. In other words, even if the Constitution ratified in 1789 was intended to foreclose a right of secession, might there be circumstances in which a President should allow a section of the nation, no longer linked by interest and opinion to the rest, to simply leave in peace? In the early days of the American republic, this question was bandied about constantly in American political discourse; since the Civil War, however, it has utterly disappeared. This fact testifies to the extent to which the regime that has emerged from Lincoln's presidency is not quite the one that entered it; and shows how an almost-mystic devotion to the nation's territorial integrity has numbed critical reflections on the moral and philosophical premises that underlie the modern American regime's refusal to countenance a right of secession.

1. A RIGHT OF SECESSION?

   From the earliest days of the republic, Americans debated whether the states had the right to nullify federal laws or, more dramatically, secede from the Union. (11) Although Farber's account suggests that secessionism was a southern phenomenon, (12) the rallying cry was at various times sounded throughout the nation. A biographer of John Calhoun suggests a delicious irony--that the young Calhoun, destined to become the leader of southern nullification movements, first heard secessionist arguments from the Reverend Timothy Dwight, the arch-Federalist president of Yale College, during Jefferson's presidency. (13) With Virginians claiming the Presidency in the early nineteenth century, an embittered New England seized upon various causes to threaten secession, culminating in the Hartford Convention of 1815. (14) Soon the southerners would raise the banner of secession, first over tariffs designed to protect northern manufacturers at the expense of southern consumers, and eventually over the congeries of issues that clustered around slavery (e.g., the enforcement of the Fugitive Slave Act, the use of the mails to spread abolitionist literature, and the expansion of slavery into the territories). (15)

   In his analysis of secession, Farber follows a roughly chronological approach. He first considers whether the states were sovereign political entities prior to the ratification of the Constitution (pp. 26-44), then turns to the development, in the early years of the republic, of the doctrine of state nullification. This doctrine prefigured the full-blown secession movements of the mid-nineteenth century (pp. 45-69). Farber concludes with the question of secession proper, considering it first as a constitutional right (pp. 70-91), and then as a right of rebellion (pp. 92-114).

   1. The States as Sovereigns

      The secession argument hinges in part on the claim that the states were independent sovereigns prior to ratifying the Constitution and that they should therefore be able to reclaim their political independence. If, however, the states were never sovereign entities, then the case for the right to secede loses one of its fundamental premises. Thus did Lincoln argue in his Special Address to Congress on July 4, 1861:

      Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of "state rights," asserting a claim of power to lawfully destroy the Union itself? Much is said about the "sovereignty" of the States, but the word even is not in the national Constitution, nor, as is believed, in any of the State constitutions. What is a "sovereignty" in the political sense of the term? Would it be far wrong to define it "a political community without a political superior?" Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of...