| Book Review | Law and History Review, 22.3

Book Review

Daniel Farber, Lincoln's Constitution, Chicago: University of Chicago Press, 2003. Pp. 256. $27.50 (ISBN: 0-226-23793-1).

Impressively talented but endlessly frustrated, legal historian Stephen Botein, shortly before his death in 1985, wrote what in retrospect was almost his own sad obsequy. Reflecting on his too soon-to-be truncated career, Botein complained that legal history's "potential as a source of basic and unique insight remains unrealized" (Early American Law and Society [New York, 1983], 3). He had labored for years to bridge the stubborn research and interpretation gaps that, despite their shared interest in past events, separated attorneys, even those who used legal history in their work, from legal historians and other law-related scholars. Finally acknowledging what he mistakenly believed to be the failure of his efforts, Botein, still woefully young, wrote, "Let lawyers be their own legal historians,... and let historians be the same. Once in a while they may have something to say to one another" (Reviews in American History 12 [1985]: 313).

Even as Botein expressed this dour hope, his "once in a while" was occuring more frequently than he acknowledged. Kermit Hall's Comprehensive Bibliography of American Constitutional and Legal History, 1896–1979 reached print, even as Botein mourned, and was winning deserved enthusiastic reception and use. Its entries listed thousands of legal and constitutional history-related publications. Most of their authors graced the faculties of law schools, history departments, and other law-related disciplines. Their writings have proved to be important cross-disciplinary reevaluations of diverse aspects of America's legal and constitutional history.

Farber's Lincoln's Constitution deserves a place in this roster of important legal-constitutional history titles. Farber both restates the complex issues facing the bifurcating Union, 1861–65, and connects some, including federalism, judicial review, and presidents' crisis powers, to their prewar evolutions, wartime uses, and post-9/11 reappearances, thereby offering readers many useful insights. For example, he concludes correctly that "In practical terms ... the key issue [in the southern states' decisions for secession] was not sovereignty but power" (44).

The need to exercise power befuddled President Buchanan, who, Farber asserted, "might have made a good judge, but he was too timid, indecisive, and intellectually inflexible to take decisive action in a crisis" (13). I read the quoted sentence to a very able federal district judge. Her indignant reply was "Humph!" Perhaps Farber might avoid appearing as counsel in her courtroom.

But he would be most welcome in my classroom. His Lincoln's Constitution captures essential contrasts between the hapless Buchanans and the Lincoln Republican-War Democratic coalition. The latter's members learned what 9/11 requires us to relearn. How, in real crisis, to unleash the nation's suddenly swollen military power quickly, effectively, and responsibly, while yet respecting state-centered federalism, calendared elections, economic capitalism, and, with rare and minor exceptions as measured by the conduct of civil wars abroad, dissenters? Answers lie in the fact that Lincolnians' purposes evolved, from reversing states' secessions to obliterating the most egregious state wrong, slavery, and the Confederacy that was born to save it and that died with it.

In perceptive chapters, Farber sketches the evolutions of supreme law doctrines (Madison defeats Calhoun, 66–70), of contending views on the nature of the Union, of coercive wartime internal security policies administered by candid and responsible officials (Stanton trumps Ashcroft), of presidential powers (Bush II administrators and Supreme Court Justices should note especially 129–43), of individual rights, of the rule of law, and, last, of the "Lessons of History."

Farber, who uses the Civil War "as a test case" (2) by which to gauge our post-9/11 anti-terrorist policies, in commendable manner avoids viewing the past through what Oscar Handlin termed "transcendental eyeballs" (Truth in History [Cambridge, 1979], 110). But enough praises. Perhaps because I wish I had written Lincoln's Constitution, I turn now to what I see as its few negative aspects.

They derive primarily from his decision to excise wartime from postwar Reconstruction, a cleavage much devalued in the literature. Granting the wartime frame (I hope that Farber has a post-Appomattox study in train), I miss attention to the prime contextual fact that Lincoln's reconstruction policies took form because the Confederacy's central theme early became territorial contraction. Initially with few guidelines from Washington, Union soldiers "reconstructed" civil governments in occupied Secessia, first in localities, then counties, then entire states. This pragmatic fact spurred the Army's nominal civilian overlords to produce politically feasible and legally stabilizing state-restoration alternatives that, by 1863, included both the transformation of free and slave black males into armed bluecoats and the emancipation promise for all blacks. In brief, well before Appomattox, soldiers' successes created legal as well as constitutional uncertainties concerning not only the status of the crumpling Confederate states in the reviving federal Union, but also the condition of those states' domestic laws and residents.

Contemporary understandings here and abroad in a century plagued by civil wars were that losers faced the invalidation of every public or private, war or nonwar, legal commitment entered into from the onset of hostilities. If adhered to, this doctrine invalidated, for example, every southern post-Sumter business contract and marriage, thereby inviting both commercial anarchy and transforming every wartime wedded southern couple into mere fornicators and all wartime babies into bastards, the ignoble status whites had long reserved for blacks. Documents unearthed by the Lincoln Legals Project suggest that Lincoln came to the presidency possessed of views on race and rights gained from his prewar law practice (see, for example, Dungey v. Spencer, DeWittt County Court, 1855). Reconstruction policies devised by lawyer Lincoln and other able Republican attorneys-in-government, skirted dread eventualities, as did postwar, not-so-radical Republican civil rights and political rights innovations.

Their agility makes the more regrettable Farber's devotion of only a baker's dozen scattered pages to the Confederacy's constitution and policies, surely the most intimate analogs to Lincoln's Constitution. Europe's numerous civil wars of the late 1840s, and Mexico's in the 1860s, inspired Georges Clemanceau, Horace Heilbronner, Thomas D'Arcy McGee, and Karl Marx, among other foreigners, to study our Civil War. And Farber's numbing dedication both to the didactic "we" and to the necessarily imprecise passive voice, grate, and, worse, obstruct communication.

Harold M. Hyman

Rice University

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