Civil War History 50.2 (2004) 198-199
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Law professor Daniel Farber has written a well-argued study of Lincoln's wartime actions defending the Union. He is eager to demonstrate that the president's legal arguments usually are viable today. He notes several cases decided by the modern Supreme Court in which justices defend arguments of secessionists and defenders of slavery. But his main attention is given to Lincoln's world and its constitutional arguments.
Farber does not dwell on it but much was at stake. The United States is perhaps the most legally minded nation in the world, and constitutional arguments of decades past led the nation to conflict in 1860-61. Both sides believed that success depended in part on persuading supporters that men fought to defend the Constitution. While a few people proclaimed that in war law is silent, no one in authority agreed, and few citizens in this self-governing country believed the law was irrelevant. Farber shows what they were arguing about.
He focuses on two major questions: 1) was secession constitutional? and 2) was Lincoln's exercise of executive authority in wartime lawful? He makes a persuasive case that secessionists lost their case for disunion. He further supports the morality of making war to defend the constitutional union. He also affirms that most of the time, though not all the time, Lincoln's presidency followed constitutional rules. Lincoln was no dictator, Farber says, and his example "does not support current advocates of further expansion of presidential power" (4). But he is not unanimous in his support of Lincoln. Farber doubts that the president lawfully exercised his powers when he ignored Congress and proceeded to call for troops and pay private citizens from the government treasury.
Farber often makes his case by telling modern examples. He highlights the power given to the national government in 1787 by asking how most Americans would react to the United Nations having such powers. [End Page 198]
But Farber's brief would have been stronger had he gone more deeply into historical literature. It is not quite true that enforcement of the Fugitive Slave law "horrified Northerners." The law usually was enforced without disorder, though Bostonians occasionally rioted. I would like to have seen some notice that at the same time that Americans were ratifying the Constitution, they were rejecting the Articles of Confederation—thus undermining claims that the Articles are a guide to the Constitution's meaning.
And he might have made much more use of the arguments of constitutional authorities of the war era—people like Philadelphia patriarch Horace Binney, Timothy Farrar, and Harvard's Joel Parker. In addition he follows too many other writers on the subject in quoting Lincoln's famous query "are all the laws but one to go unexecuted, and the government go to pieces" without noting that Lincoln continued by denying that he had broken even that one law.
But Farber has given readers a well written, thoughtfully considered discussion of many of the "Constitutional Problems under Lincoln." In doing so he has clarified the major executive issues brilliantly. This lawyer has given us historians much to think about and modern Americans much to discuss.
Phillip Shaw Paludan