Lincoln's Constitution by Daniel Farber

Review by David A. Youck

© 2003 by the University of Chicago. ISBN: 0-226-23793-1. 200 pages and 34 footnote pages.

It has been said that no person, except Jesus Christ and Shakespeare, has had more books published about him in the English language than Abraham Lincoln. The enduring fascination he poses for all of us draws us to study him and the Civil War which engulfed the 16th President in the mid-19th Century. The reason why we study Lincoln, is that no one has yet conclusively figured out quite how Lincoln kept the Union together, when so many forces around him at the time were trying to rend it asunder.

This book gives the legal foundation encompassing the reasons for the Civil War.

Farber begins with constitutional conclusions (page 3) that "secession was indeed unconstitutional" and "that military resistance to secession was not only constitutional but also morally justified."

Three events from the 1850s set in motion an inexorable march to the Firing on Fort Sumter on April 12, 1861. The first was the horrible enforcement of the Fugitive Slave Act. So few slaves escaped to the North, and of those, few were returned South. But the Act engendered so much bitterness and resentment among Northern Abolitionists and others, that the Act's real value to the South may have been largely symbolic, and of no real utilitarian import.

The second event in the decade before the War was passage of the Kansas-Nebraska Act under the leadership of our own Illinois Senator Stephen Douglas. The convenient demarcation line for slavery in new western territories (36° 30' or the Kentucky-Tennessee and Missouri-Arkansas boundary lines extended westward) of the Missouri Compromise of 1820 was obliterated in favor of "popular sovereignty"--free choice by the inhabitants of those new territories. Hence the term, "Bloody Kansas" after John Brown and his friends came west to stir things up.

The third event was Dred Scott v. Sandford, 60 U.S. 393 (1857). "The case was a true trainwreck. Taney's opinion is widely agreed to be an intellectual disgrace." (page 10) The case held that "blacks could never become citizens of the United States"; nor could Congress ever ban slavery in the territories.

After Dred Scott, the beginning of War was only four years off.

When it came, Lincoln worried deeply that Maryland would secede, leaving the nation's capital an island amid secessionist Confederate States. So on April 27, 1861, he suspended habeas corpus between Philadelphia and Washington, and following an arrest, Chief Justice Taney issued a famous opinion. Lincoln just ignored it.

Farber covers the early struggles after the Constitution among Southern States to allow "nullification" of federal law and explains the various concepts of "sovereignty" that even today show up in U.S. Supreme Court opinions, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, (1995).

This book is a must read for all lawyers who want to understand the legal underpinnings of the Civil War, and not just the popular assumptions that it was only about slavery and states' rights.

Daniel Farber is presently Professor of Law at the University of California, Berkeley and the University of Minnesota. Professor Farber received a B.A. in philosophy with high honors in 1971 and an M.A. in sociology in 1972, both from the University of Illinois. In 1975 he earned his J.D. from the University of Illinois, where he was a member of the Order of the Coif, editor in chief of the University of Illinois Law Review, a Harno Scholar and class valedictorian.

This reviewer was in the author's law school class, but he was way above me even then!!!