Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (review)

“This book does not contain a relentlessly focused argument” (17). When Mark Neely wrote that astonishing confession in Lincoln and the Triumph of the Nation, he must surely have guessed wickedly how many reviewers would fall into the trap of agreeing with him. There is, in fact, quite a relentlessly argued focus in this powerful and eccentric tour of American constitutionalism under the stress of the Civil War, and it has to do with how nationalism, North and South, eased the pain of conducting a war under the restraints of both the Federal and Confederate constitutions. What is true in Neely’s statement, however, is that, like a number of his previous books, Lincoln and the Triumph of the Nation tends to be narrow and episodic in style, rather than a point-to-point survey of Civil War–era legal problems (such as Stephen Neff’s Justice in Blue and Gray [2010] or Robert Bruce Murray’s Legal Cases of the Civil War [2003]) or a narrative of high crimes and lawsuits (such as Brian McGinty’s Lincoln and the Court [2008] or Jonathan White’s Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman [2011]). Nor is Neely concerned with paying homage either to past writers—James G. Randall and Harold Hyman alike are dismissed with a twitch of impatience—or to current scholarship on Confederate nationalism from Stephanie McCurry and Drew Faust. In Neely’s hands, both the Federal and Confederate constitutions are seen as instruments of nationalism, and nationalism as the principal prop of the constitutions, all of which worked quite nicely for both the North and the South. He has no time for the fainthearted who can understand nationalism only in dangerous or pathological terms, or who need to make emancipation overtake the Union as quickly as possible as a war aim. Nationalism does not “hearken back to reactionary ideas” (49–50) or “prefigure totalitarianism and fascism” (50), and it bothers Neely not at all to “ask whether Lincoln was more a nationalist than a humanitarian” (13).

There are, in fact, only four great issues in Civil War constitutionalism that Neely thinks it important to discuss—the sources of Lincoln’s constitutionalism, the writ of habeas corpus, emancipation, and the Confederate Constitution—and on each issue, he is by turns dismissive, erratic, extravagant, glorious, and brilliant. Neely’s Lincoln begins as a practical nationalist, devoted to the development of the West and the Whig Party as the vehicle of that development. What Lincoln sees in the Constitution is the legal guarantee of nationalism. Yet Lincoln will not, in Neely’s judgment, make this argument very well. Lincoln’s belief that secession is the equivalent of anarchy (because of its refusal to play by the rules of majoritarian democracy) turns out to be fabulously wrongheaded because, as Neely remarks, the Confederacy sustained no such anarchy.

Neely’s pronouncement on Lincoln’s multiple suspensions of the writ of habeas corpus is even more surprising, in that Neely considers the challenge posed to Lincoln’s “war powers” by Ex parte Merryman to be wildly overexaggerated. Not only did Roger Taney lack much of a following for his opinions, but most of the ensuing legal commentary ranged from the appreciative to the insignificant. To be sure, habeas corpus does figure in the state courts and federal district courts, where the writ was frequently used by “factious and evil-minded” judges to liberate conscripts from the clutches of the draft (195). And one of the extraordinary strengths of this book is the attention it pays to the lower courts, where most of the Civil War’s jurisprudence was hammered out. But the army was tenacious of its draftees, and Lincoln’s nationwide suspension of the writ in September 1863 “was the constitutional equivalent of exiling the troublesome judges” (197).

At the same...