Lincoln and the Court (review)

There is no shortage of books about Abraham Lincoln and the Civil War and, since February 2009 is the bicentennial of his birth, many more can be expected this year. But, as so much has already been written about one of our most revered presidents, even military historians look for overlooked or neglected topics. For example, James M. McPherson, whose Battle Cry of Freedom is widely acknowledged as a classic in military history, has a new book on Lincoln's role as Army Commander-in-Chief, and Craig L. Symonds, a professor emeritus at the U.S. Navy Academy, has a new treatise on Lincoln's masterful leadership of the Union Navy. Since the last important study on Lincoln's performance as a commander was published more than 50 years ago (T. Harry Williams, Lincoln and His Generals, 1952), both McPherson and Symonds have tackled neglected topics.

Lincoln and the Court likewise addresses a subject that has been neglected, if not ignored, by historians: the story of our sixteenth president and the Supreme Court during the Civil War. While this is not military history, lawyer Brian McGinty has written an important book for military historians. This is because he examines the Civil War and Lincoln's wartime acts as Commander-in-Chief through a legal lens, and consequently provides a different context for understanding the struggle that is most often viewed as military history.

McGinty recognizes and understands the importance of more than 4,000 separate engagements fought by Union and Confederate forces between 1861 and 1865. But he believes that these military events were important only in the first instance. This is because the Civil War "was, at its heart, a legal struggle between two competing theories of constitutional law" (emphasis supplied) (p. 1). One theory-embraced by the Confederacy-was that the nation was simply a voluntary association of sovereign states who could at any time elect to end that association, for whatever reason. The second theory-enshrined in the North and held sacred by Lincoln-was that the United States was a permanent union of states that, having been created by the people and bound together by the Constitution, was indivisible. It follows that the legality of South Carolina's secession in December 1860-and the ten states that followed her-arguably was more important than any conflict on the battlefield since, regardless of any military outcomes, the lawfulness of secession ultimately "would be argued by lawyers and judges, and submitted for judgment to the Supreme Court, in whose hands the power (and awesome responsibility) of interpreting the Constitution, was entrusted" (p. 2).

Lincoln and the Court is about the lawfulness of the South's attempted secession, and the role played by the Supreme Court in deciding the future of the United States. The book, however, addresses much more, since Lincoln's efforts to defend the Constitution and prosecute the war to a successful conclusion raised a host of other legal questions. Did the president, acting as Commander-in-Chief have the power to suspend habeas corpus? Was it lawful for him to empower Union commanders to arrest and detain U.S. citizens who publicly excoriated the administration for its war policies? Was it lawful for Lincoln to use military commissions to try these and other civilians who expressed sympathy for the enemy? Did Lincoln's power as commander in chief give him the authority to order a blockade of southern ports? Finally, did Lincoln have the authority to free slaves on the grounds of military necessity?

As Commander-in-Chief, Lincoln took a number of radical measures to preserve the Union. But, because he claimed that the Constitution gave him the power to take these extraordinary actions, this meant that the Supreme Court would finally decide whether Lincoln was correct. And Lincoln knew-because he was a lawyer-that the Supreme Court could badly damage the North's war effort by declaring that many of his wartime measures...