Vol. 14 No. 1 (January 2004)
LINCOLN'S CONSTITUTION, by Daniel Farber. Chicago and London: The University of Chicago Press, 2003. 256pp. Cloth: $27.50. ISBN: 0-226-23793-1.
Reviewed by Kevin R. C. Gutzman, Department of History and Non-Western Cultures, Western Connecticut State University. Email: firstname.lastname@example.org .
In his new book on the constitutional world and legacy of Abraham Lincoln, law professor Daniel Farber situates the constitutional career of the sixteenth President of the United States within the tradition of Alexander Hamilton, Henry Clay, Woodrow Wilson, Franklin Roosevelt, and post-World War II American statesmen and scholars. He does so through analysis of some writings of the draftsmen of the Constitution, the most readily available contemporary writings on the subject, selected jottings of Lincoln's contemporaries, opinions of various Supreme Court justices, and the paper trail of President Lincoln himself. While the book coheres on its own terms, it is exemplary of the kind of "law-office history" that historians find so frustrating.
This is not to say, however, that Farber does not seriously consider the apposite questions. From the start, he focuses on the questions whether the Southern states had a right to secede, whether Lincoln usurped the Legislative and Judicial Branches' powers, whether he trampled on the constitutional rights of American citizens, and whether his government had a right to reestablish its authority over the Confederate states coercively. Since the positive side of the ledger - the freeing of the slaves - is a given, any evaluation of Lincoln's constitutional legacy must center on these issues.
Farber's first chapter, logically, is entitled "The Secession Crisis." Instead of beginning with Lincoln's admiration of Henry Clay or one of the numerous episodes earlier in his life on which other historians have focused, Farber gets straight to the point: Lincoln as president. To that extent, then, this book is not a replacement for the work of Harry V. Jaffa or George Forgie, but a supplement to it. It might be considered as a useful companion to Philip S. Paludan's history of Lincoln's presidency.
Historians may find the book somewhat frustrating, because Farber often vindicates or condemns Lincoln's behavior at least partially on the basis of what later presidents, acting on the basis of precedents Lincoln had established, did. He warns the reader of his intention early, saying, "we can use Lincoln as a test of modern constitutional doctrine, and use modern doctrine as a medium for assessing Lincoln's actions" (p. 2). This approach, common in legal academics' writing, will receive an unsympathetic reception from the devotˇs of Clio; what exactly does one learn about Abraham Lincoln and the Constitution, for example, from being told that Lincoln's example was followed by Woodrow Wilson or Franklin Roosevelt?
Farber's book also falls short on the score of his use of sources. When addressing the constitutionality of Southern secession, for example, Farber frequently has recourse to the reasoning of Lincoln's immediate predecessor in the Chief Executive office, James Buchanan. Say what one will about Buchanan, he is seldom (before reading Farber, I might have said "never") considered a notable authority on constitutional meaning. Besides his extensive reliance on Buchanan, another notable oddity in Farber's research plan is his omission to use the ongoing DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION. Instead, Farber's discussion of the Constitution's eighteenth-century meaning is dependent almost completely on THE FEDERALIST, on apparently fortuitous mining of some of the papers of individual Founding Fathers (nearly all of them on the nationalist end of the spectrum), and on contemporary secondary works. Although this approach is exceedingly common in the writing of legal academics, historians will find it intensely disappointing.
Beyond his general approach and his choice of sources, what is one to make of Farber's attitude toward his subject? It is generally even-handed. Thus, in summarizing Lincoln's constitutional record, Farber writes, "Although Lincoln cannot fairly be accused of dictatorship, he did stretch the power of the presidency to its outer reaches. He also authorized unprecedented exercises of government power over individuals: arrest and detention without military process, trial by military tribunals, and whole-sale destruction of individual property (most famously in Sherman's march through Georgia). After decades in which nearly everyone had agreed that slavery in the South was beyond the reach of federal power, he ordered the freeing of millions of slaves with a stroke of the presidential pen. It is little wonder that the constitutionality of his actions has been hotly disputed since almost the day he took office" (pp.20-21).
In his second chapter, Farber deals at length with the historic debate over the locus of sovereignty in the federal system. From the very beginning, Farber is confused about the concept. He says, for example, that, "If, as Blackstone said, sovereignty resides in a society's 'supreme, irresistible, absolute, uncontrolled authority,' no government in America since 1789 has ever fit this description. All units of government are subject to the Constitution. Thus, for domestic purposes …, sovereignty does not describe an operational feature of our political system" (p.29). Of course, this is simply erroneous: under the American theory of government, the People are sovereign. As the Virginia General Assembly noted in the Report of 1800, the sovereign people of each state ratified the federal Constitution, so it is the people of each state that retains sovereignty - as expressed, for example, in the power to amend the federal Constitution.
Farber next notes that the Eleventh Amendment exempts states, but not cities, from some lawsuits, and he concludes that state governments are sovereign in that sense. Again, this is to mistake a feature of the American regime created by the people via the amendment process (in this case, immunizing states against suits in federal court by adopting the Eleventh Amendment) for sovereignty. As the Virginia General Assembly noted in 1800, the sovereign "states" are the peoples of the respective states. Farber's assumption that it is the state governments that are sovereign under the Eleventh Amendment, instead of being immune from certain types of suits under the law as established by the sovereign people, is typical of many writers' confusion on the score of sovereignty.
Farber concludes this section by saying that the concept of sovereignty does not describe anything specific in the American system, because "lawmaking authority is distributed among different sets of officials." But, again, sovereignty is not "lawmaking authority," but the ultimate authority in a society (p.29). In America, the lawmaking authority has been parceled out among various institutions by the sovereign people.
Farber notes that there have been three basic accounts of sovereignty in America: the Lincolnian notion that the Union was antecedent to the states; the Hamiltonian notion that adoption of the Constitution operated a transfer of sovereignty to the federal government; and the "Calhounite" notion that the states remain sovereign (pp.30-31). Farber is not alone in identifying the notion expressed in the Virginia Report of 1800 with John C. Calhoun. However, that report actually was authored by James Madison, and the notion that ratification of the Constitution was a federal, not a national, act had earlier been expressed by Madison in THE FEDERALIST #39. It seems that this position, which was Jeffersonian dogma and which had been forthrightly advocated by, among others, the pro-ratification side in the Virginia Ratification Convention of 1788, is ascribed to Calhoun in order to denigrate both the position and the Carolinian.
This is one point at which Farber's analysis would have been strengthened by a sound familiarity with the DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Edmund Randolph's HISTORY OF VIRGINIA, and so on, but at which virtually all of the sources he cites are secondary. (Joseph Story was by all accounts a brilliant fellow, but his commentaries' age does not make them a substitute for primary documents; his and John Marshall's imperative to justify extensive exercise of federal power disqualifies them as authoritative, neutral historical commentators. Yet, Farber repeatedly invokes their authority in support of his claim that there is no solution to the question where sovereignty lay in the period 1776-1861.) Thus, for example, Farber repeatedly relies on the notion that "no colony declared independence before being authorized to do so by Congress" (e.g., p.35). This claim displays ignorance of the situation in Virginia, where - as James Madison's correspondence shows - independence was publicly celebrated at Williamsburg on May 15, 1776, and where a permanent republican government was established on June 29 of that year. Virginians were well aware of this fact, as Governor William Branch Giles' speeches on the matter during the 1829-30 Virginia Constitutional Convention demonstrate. Virginia's situation explains why its congressmen were forthrightly instructed to declare independence, while those of other states were given only conditional instructions. (Too, the Virginia General Assembly would have been shocked in 1776 by the idea that its ambassadors to Congress could "authorize" it to do anything.)
The idea that a more powerful federal government is a more
sovereign one also recurs repeatedly in Farber's account (as, for example,
at p.42). Again, this is simply confused. According to the second paragraph
of the Declaration of Independence, which had its echoes in various state
constitutions, the people could reclaim their executive powers whenever the
government ceased to serve the purposes for which it had been created; giving
government more power did not make the people less sovereign, nor did it make
government sovereign at all. It was on the basis of this understanding that
Federalists could argue in 1787-88 that no federal bill of rights was necessary:
the federal government could not exercise any authority it had not been granted
by the people, it had been granted no power over speech, press, assembly,
etc., so it could not infringe upon
those rights. One need not concur in this reasoning as it affects the rights at issue in order to understand its implications regarding sovereignty.
What is the purpose, then, of obfuscating the issue of sovereignty? From Marshall's day to this, it has been to eliminate one powerful obstacle to the exercise of federal government power. Yet, it has not always been obfuscated intentionally, but often through simple confusion. When Farber asks what the "Framers" thought of the issue, he seems to partake of confusion (p.44).
In his third chapter, "The Supreme Law of the Land," Farber begins by saying that Jeffersonians lit upon state resistance to federal policy as a convenient mechanism. What he apparently does not know, however, is that the proponents of ratification (especially Governor Edmund Randolph and George Nicholas) had noted this possibility in the Richmond Convention of 1788. If Virginia ratified the Constitution, these two leading spokesmen for the Constitution said, it would become one of thirteen parties to it. (Both Randolph and Nicholas said the new government would have only the powers it was "expressly delegated.") In case the federal government overstepped the bounds of its authority, it would be up to Virginia to intercede. (In 1790, the General Assembly adopted a resolution saying that the federal government had only the powers it had been "expressly delegated" and that the General Assembly intended vigilantly to hold the Federalist administration to this conception.) Thus, pace Farber, there was nothing new about the Jeffersonian position of the 1790s, as laid out in the Virginia and Kentucky Resolutions of 1798. (I laid this history out in an article in THE JOURNAL OF SOUTHERN HISTORY four years ago, but Farber seems entirely innocent of the historical journal literature.)
A similar ignorance of the primary sources (and the history journals) is evident in Farber's discussion of the Nullification Crisis of 1832-33. After laying out Calhoun's theory in a way hostile to Calhoun, Farber relies on James Madison's rebuttal of the South Carolina position as if Madison had been a neutral oracle. Thus, Farber recounts Madison's efforts to dissociate the memory of Thomas Jefferson (who died in 1826) from the cause of nullification; what Farber omits, however, is that Thomas Jefferson Randolph, Jefferson's favorite grandchild, embarrassed Madison in the midst of the nullification debate by producing the first draft of Jefferson's Kentucky Resolutions, in which Jefferson actually had used the word "nullification" - thereby catching Madison in a public lie. Indeed, Jefferson also wrote a 1798 letter to Virginia sage and statesman John Taylor of Caroline in which the then-vice president said the time for secession had not yet arrived, which implied that Jefferson considered secession a possibility - with all that that means regarding Jefferson's understanding of the federal Union's nature.
Farber says that, "Madison emphasized that to guard against misunderstanding, the words 'not law, but utterly null, void, and of no force or effect' were struck out [of the Virginia Resolutions of 1798]." Here again, Farber's lack of familiarity with the primary sources is evident: the published record of the 1798 debate over the Virginia Resolutions demonstrates that the excision of the words in question was accepted by the Republican Assembly majority on the ground that, since the Resolutions also called the Alien and Sedition Acts "unconstitutional," to label them "null, void," etc., would have been redundant. The comments of future Governor and Secretary of War James Barbour are especially apposite here.
In his fourth chapter, "The Union Forever?" Farber misstates the nature of nullification, saying that it made state legislatures the authoritative interpreters of the federal Constitution, when it really assigned that status to state nullification conventions (p.71). He then turns to the question whether secession was constitutional. There were two versions of the argument that it was, he says-one based on the nature of the Union (as a compact among the states), the other based on the revocability of the act of ratification itself (p.81). Here, Farber argues thus: James Buchanan said the federal government had several of the powers of a national government; James Madison said no head of state could alienate any part of a nation under international law; Farber says this "does suggest a presumption in favor of national territorial integrity." Since the United States has purchased territory from, e.g., various Indian tribes, Mexico, Spain, France, and Russia, this is all highly dubious.
Farber also argues that Congress had assigned the federal courts power to review state court decisions and "prevent state officers from interfering with the operation of federal law;" "the law on this point was well settled by 1860;" "[t]hus, the constitutional regime did not assign the states any independent interpretive role that could provide a foundation for secession" (p.84). This seems to me rather a weak argument. The fact that federal courts can enforce federal law against state governments on a quotidian basis does not mean that state governments, let alone state peoples, have no role in interpreting the federal Constitution in extreme circumstances. Otherwise, how could the amendment process function? Besides, the circumstances contemplated by Randolph and Nicholas in 1788, the Virginia General Assembly in 1790, and the Republicans in 1798-1800, among others, were precisely those that were not quotidian. While this forum does not provide space to respond to each of Farber's arguments, suffice it to say that they display related shortcomings.
As to the second question, whether ratification might be rescinded, one finds Farber again taking arguments at face value, misconstruing context, and committing related errors. He cites, for example, a passage from THE FEDERALIST #40 saying that "the [Philadelphia] Convention's mandate was 'to establish in the States a firm national government' which would be adequate to the exigencies of government and the preservation of the Union," and he draws deductions from this claim (p.88). Yet, as the world knows, the Philadelphia Convention had no such "mandate," but was supposed to recommend amendments to the Articles of Confederation. The majority's decision to go further than it had been charged to go led to the withdrawal from the Convention of fully one-third of the delegates. Farber's research program, based as it is at this point heavily upon the writings of Madison, Alexander Hamilton, Story, and John Marshall, is skewed toward the nationalist end of the political spectrum, and so perhaps he can be forgiven this error, but the error vitiates the value of his endeavor to contextualize Lincoln.
At the end of this chapter, Farber says "neither the text nor the ratification debates provide any foothold for an exit option" (p.90). Again, one must note that Farber has displayed no familiarity, either in his text or in his endnotes, with the DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, so his implicit claim of knowledge of the ratification debates' contents rings hollow. A true familiarity with those debates leads to the conclusion that people were given different accounts of the Constitution's ultimate nature in different states: in New York, for example, Hamilton and John Jay led the Federalists in describing a national constitution; in Virginia, Randolph and Nicholas promised that the significance of ratification would be limited.
Chapter 5, on "The Legitimacy of Coercion," begins with James Buchanan's qualms concerning coercing the South into giving up its claim to independence. Ultimately, Farber relies upon Chief Justice Marshall's opinion in MCCULLOCH v. MARYLAND to justify the use of whatever means are necessary to enforce federal law. After offering up this ipse dixit, Farber observes that secession is absurd because (1) a seceding state would remain part of the Union, so it could not be treated as a foreign power; (2) if more than a quarter of states seceded, the remaining states could never amend the Constitution; (3) other states would have to meet the seceders' Article IV claims, but the seceders would not have to respond in kind; (4) citizens of the seceding states could invoke federal diversity jurisdiction in the United States, but United States courts' jurisdiction would not run in the seceding states (pp.99-100). Absurd, yes: seceding states, having seceded, would be foreign, just as Ukraine is foreign to Russia today. Farber's argument seems almost willfully silly.
What, then, about secession as revolution? Did the seceding states of 1860-61 have a colorable claim to independence under the precedent of 1776? No, says Farber, because "In 1776, rebel states that happened to have slavery contended for their inalienable human rights. This was an irony. In 1861, rebel states invoked their inalienable human rights in defense of their very ownership of slaves. That was not an irony but a self-contradiction." "Thus, the American Revolution was no moral precedent for secession" (p.105).
This argument has been typical of defenses of Lincoln's course ever since the 1860s. Harry V. Jaffa, for one, has made this argument consistently and forcefully. In the light of recent historiography, yet, it cannot be sustained. As Woody Holton demonstrated in FORCED FOUNDERS, slavery was not peripheral to the Patriot cause in 1776, but central to it (1999, at 105). Here, too, lack of familiarity with the basic historiography of his subject taints Farber's book.
Besides, one might ask why the morality of the purpose behind exercise of a right should be understood as conditioning exercise of that right in the case of secession and only in the case of secession. This moral argument - that the Confederacy could not be allowed to establish its independence in behalf of slavery - has often been raised, but it is raised in regard to virtually no other right. We do not expect that only the defendant innocent of the charges should avail himself of his right to court-appointed counsel, or that only the publisher who does not intend to publish degrading or anti-social material should exploit the freedom of the press; legions of politicians say "I do not personally favor abortion, but I do not think the government should infringe on the right to privacy." Why, then, is their claim to a right of secession to be conditioned by our approval or disapproval of Confederates' motives? It goes without saying that rights are usually only exercised by political (read: moral) minorities. Logically, Farber's argument amounts to, "I prefer democracy to republicanism, untrammeled majority rule to limited government," but only in this case.
Farber concludes his discussion of this issue by agreeing with Lincoln that a constitutional convention should have been called to resolve the sectional dispute. Only thus, he says, could the northern majority's right to rule the entire area of the pre-1860 United States have been respected (p.111). Here, he echoes President Andrew Jackson's Nullification Proclamation, in which he said that the proper response to unconstitutional legislation was to elect new congressmen. As I understand his reasoning, it could as easily be invoked against the independence from the United Kingdom claimed by Connecticut in 1776; I am certain that the majority of the Empire would have disapproved, if the Connecticut Patriots had seen fit to consult it. Pardon me for being happy that they did not.
Indeed, it seems clear to me that rare is the geographic minority that would ever cease to be dominated by a majority population under Farber's - Lincoln's - conditions. The fact that we do not approve Confederates' motives in desiring independence does not make the issue of the permanently aggrieved geographic minority any easier for democratic theory to resolve, and in trusting to Lincoln's sectional party to address southern grievances, Farber sounds a bit like the James Otis of 1764: if only Parliament realized the colonists believed it was exploiting the colonists, Otis said, Parliament would revise its policy. By 1776, Otis's was a minority position.
In Chapters 6, 7, and 8, Farber explores the issue of President Lincoln's conduct of the war itself. Did he usurp congressional power? Did he violate individual rights? Did he establish a dictatorship? These are difficult issues.
First, Farber rightly notes, Article II - the Executive article of the Constitution - is extremely vague. What had the authors and ratifiers thought it meant? As elsewhere, Farber here relies on Madison, Hamilton, and recent secondary works. His chief source, however, is the subsequent history of the Executive Branch: since Lincoln's successors as president have sometimes exercised extra-constitutional "protective power," and since post-Civil War congresses subsequently approved, most of Lincoln's actions - acquiesced in by Congress as they later were - were constitutional (p.133). Again, this reasoning seems suspect; Augustus Caesar, for example, insisted that he had maintained the constitution of the Roman Republic, and his successors dutifully combined the offices of consul, pontifex maximus, etc., even as the substance of the Republic dwindled to nothing. Supposedly, Henry Kissinger asked a Chinese statesman what he thought of the French Revolution, only to be told, "It's too soon to tell," and we may have a similar answer to the question of the post-1860 presidency's compatibility with republican government. Farber does not give Lincoln's behavior blanket endorsement (p.137), but he is generally approving of the sixteenth president's attitude toward the separation of powers (p.143). Ditto Lincoln's attitude toward individual rights, the subject of Chapter 7. Farber displays great understanding of the extraordinarily difficult situation President Lincoln faced, and this prompts him to judge him less harshly than extreme libertarians sometimes have done (p.175).
In his Afterword, Farber considers "The Lessons of History." "It was," he writes, "Lincoln's character … that brought the Union through the war with the Constitution intact" (p.200). Here, Farber assumes much of what was at issue during Lincoln's presidency: that the Union was simply a territorial unit, not a group of sovereign states voluntarily joined; that the Constitution was what Lincoln said it was, not what his opponents to the south held it to be. Farber's assumptions on these scores shape most of the rest of his book. In sum, LINCOLN'S CONSTITUTION is a partisan work, more a lawyer's brief for the Lincoln administration to be argued before a contemporary American court or group of academics than an exercise in historiography. It is none the less interesting for that.
Forgie, George. 1979. PATRICIDE IN THE HOUSE DIVIDED: A PSYCHOLOGICAL INTERPRETATION OF LINCOLN AND HIS AGE. New York: W. W. Norton.
Gutzman, K. R. Constantine. 2000. "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country.'" 66 JOURNAL OF SOUTHERN HISTORY 473-496.
Holton, Woody. 1999. FORCED FOUNDERS: INDIANS, DEBTORS, SLAVES & THE MAKING OF THE AMERICAN REVOLUTION IN VIRGINIA. Chapel Hill, NC: University of North Carolina Press.
Jaffa, Harry V. 2000. A NEW BIRTH OF FREEDOM: ABRAHAM LINCOLN AND THE COMING OF THE CIVIL WAR. New York: Rowman & Littlefield.
Jaffa, Harry V. 1982. CRISIS OF THE HOUSE DIVIDED. Chicago: University of Chicago Press.
Paludan, Philip S. 1995. THE PRESIDENCY OF ABRAHAM LINCOLN. Lawrence, KS: University Press of Kansas.
MCCULLOCH v. MARYLAND, 17 US 316 (1819).
Copyright 2004 by the author, Kevin R. C. Gutzman.