Constitutionalism in the American Civil War

Ambrose Bierce did not include a definition of "constitution" or "constitutionalism" in his acerbic The Devil's Dictionary (1911), but he had quite a lot to say about the law and patriotism. A lawyer was "one skilled in circumvention of the law," while the adjective "lawful" meant "compatible with the will of a judge having jurisdiction." He quibbled with Dr. Samuel Johnson's famous definition that patriotism was the "last resort of a scoundrel." Instead, Bierce chided, "it is the first." As a product of the Civil War generation that had witnessed intense battles over habeas corpus and its suspension, Bierce even included a definition of the law that required governments to justify why they held an individual. "Habeas corpus" was, in Bierce's rendering, a "writ by which a man may be taken out of jail when confined for the wrong crime" (The Unabridged Devil's Dictionary, 2002).

What Bierce scorned with so much disdain, the award-winning historian Mark Neely now treats with care and reverence. What role did lawyers, the law, and nationalism play in the constitutional crisis of the Civil War? Did any party or group "capture the Constitution" (p. 1) or was it too big, complex, and flexible to become beholden to any one ideology? Through an intense reading of Civil War pamphlets, newspapers of the era, the letters of leading politicians such as Abraham Lincoln and Jefferson Davis, and judicial legal decisions, Neely makes a series of signal arguments. First, he finds that there were several constitutional crises during the era that animated the legal histories of both the North and the South. Second, he shows that historians have underestimated how much of an asset the Constitution was to the Union effort. Third, he suggests that the Confederate Constitution was not a reason for the new nation's demise. By addressing these issues, Neely offers the first comprehensive analysis of the multiple constitutional collisions of the Civil War era. In so doing, he nobly shows that, while nationalism was robust in both sections and although constitutional challenges were sometimes overwhelmed by patriotism, most Americans with authority approached the law in pragmatic and thoughtful ways.

The first part of Lincoln and the Triumph of the Nation examines Abraham Lincoln's relationship to the constitutional problems of secession, habeas corpus during wartime, and emancipation. Neely traces Lincoln's relationship to the Constitution through his law career, his speeches during the secession crisis, his justifications for suspending habeas corpus, and, ultimately, his move toward the Emancipation Proclamation. Secession was a crisis for Lincoln not only when he offered his first inaugural address in March 1861 (after seven states had already seceded) or when he called on Congress to ratify war measures in July 1861 (after four more states had joined the new Confederate States of America). Secession was not necessarily over, and Lincoln feared that other states might secede at any time. Given this fear, Lincoln stepped lightly in his constitutional and patriotic claims. Rather than invoke some passionate nationalism that used poetry to justify butchery, Lincoln crafted his antisecessionist arguments from a mythical, bi-partisan, and cross-sectional political history that drew from the words of Andrew Jackson, Henry Clay, and Daniel Webster. According to Neely, this type of constitutional unionism showed that patriotism could be reasonable and openly pragmatic.

On habeas corpus and emancipation, Neely shifts his approach from Lincoln himself to how others defended or attacked the president's actions. Suspending the writ of habeas corpus was no small matter, and neither was emancipation. Both led to intense constitutional debates. Neely examines the variety of defenses to the suspension of the writ of habeas corpus from Joel Parker, Horace Binney, and William Whiting. Although each justified the suspension, they did so from a variety of patriotic perspectives and, while some saw the expansion of the executive's power as necessary and supporting emancipation, others did not. The...