Customer Reviews

Lincoln's Constitution

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"Lincoln's Constitution" first examines the Constitution as Lincoln found it at the beginning of his administration, with emphasis on state - federal relations, including the right of secession. Like most modern legal scholars, Prof. Faber clearly sides with Lincoln on this (and most other constitutional issues), but he is also careful to show that believers in states' rights and secession had good historical reasons for their views. With this background, the author then examines the Constitutional issues Lincoln faced in dealing with the unprecedented challenge of waging the Civil War. Here the focus shifts to presidential war powers and civil liberties in time of war. The author points out where Lincoln was right (in light of later precedents) and where he was wrong. Again, the views of both his supporters and his critics are fully examined. Finally, Faber clearly explains the relevance of all these issues for citizens of our own time.
Authoritative, up-to-date and balanced, "Lincoln's Constitution" is an essential supplement to J.G. Randall's classic (but now dated) "Constitutional Problems Under Lincoln."

My actual rating would be 3.5 if possible because the book is somewhere between good and very good. I've long been interested in the relationship between the Civil War and the Constitution. At its base the Civil War was a constitutional struggle between two ideologies: the compact theory and the popular theory of the nature of the Constitution. Ultimately this conflict could not be resolved through politics and war became necessary.

The best part of Farber's book is the first half dealing with secession. Farber examines the debate over states' rights and ultimately secession from the Founding up to the actual secession of 1860. By doing this, Farber shows that both sides of the debate had valid historical support for their theories, though he personally sides with Lincoln. All in all, this section provides a clear, concise presentation of secession and its history.

My problem with this book comes from Farber's intent to retroactively validate the constitutionality of Lincoln's presidential power. Lincoln used presidential power in unprecedented ways. Farber notes that the exercise of presidential power had been practically non-existent, with Jackson being the only user of it in a significant manner, and, even then, it did not approach Lincoln's actions. Farber presents Lincoln's theories and support that he gave for his actions, but he goes further and uses subsequent development in executive power to validate most of Lincoln's actions. The problem with this is that in many ways it was the experience under Lincoln that shaped our evolving understanding of executive authority. For example, the three cases from the late 19th century were clearly influenced by Lincoln and the Civil War experience. Farber quotes from Jackson's Youngstown concurrence, but he should consider Frankfurter's opinion. Frankfurter noted that our understanding of the war and presidential powers have been substantially influenced by historical development and political understandings outside of Court opinions. Fundamentally, our understanding of the president's power starts with Lincoln and using subsequent developments built upon Lincoln's actions to validate those actions is akin to using the Equal Protection Clause to retroactively validate the Emancipation Proclamation.

In its entirety, I found the book thought-provoking. It provides an interesting presentation of the constitutional issues involved in the Civil War and Farber supports his position compellingly, though I find holes in some of it.

There are already several good reviews on this book, so I will only suggest reading the following books on the USA in addition to Farber's:

A) On Lincoln and/or the Civil War:

1) "Lincoln: a biography" by Benjamin P. Thomas (a classical biography, written more than half a century ago which has passed the test of time with brilliant qualifications);

2) "Battle Cry of Freedom: The Civil War Era" by James M. McPherson (nowadays the standard, very readable, one-volume history of US Civil War); and

3) "Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism" by Geoffrey R. Stone, specially chapter II "The Civil War: Mr. Lincoln's First Amendment" (in fact, all the book is worth-reading);

B) Dealing with constitutional and political ideas:

4) "Constitutional History of the American Revolution" by John Phillip Reid;

5) "America's Constitution: A Biography" by Akhil Reed Amar; and

6) "Liberty's Blueprint: How Madison and Hamilton Wrote The Federalist, Defined the Constitution, and Made Democracy Safe for the World" by Michael Meyerson.

C) Other books chosen with a historically impressionistic approach:

7) "The Death Penalty" by Stuart Banner;

8) "The Churching Of America, 1776-2005: Winners And Losers In Our Religious Economy" by Roger Finke and Rodney Stark; and

9) "American Colonies. The settling of North America" by Alan Taylor.

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problems and is the exception at amazon

Being interested in the legality of Lincoln calling on troops to supress a domestic and not a foreign threat is appealing to me, since it was, what I thought, a violation of the powers of the presidency. Grabbing this, I thought it might bring aboveboard his actions. The title is somewhat deceieving in that the first 4 1/2 chapters discuss the founding fathers and their ideaology on various presidential powers and states' rights: intriguing to read, but way too much history of the constitutional debates. Finishing the book, I came to realize this was the author's way of defending his conclusions: that Lincoln did not abuse his powers and acted within the bounderies of constitutional law (though the last chapter discussing Lincoln's enfringement on Free Speech is hard to swallow as legal.) Still a fascinating read on the topic of constitutional power,that is just as important today as it was then.

REad this book. It will make you realize that some President's have gone much farther in their goal to make America safe and protect the Constitution. Of course Lincoln's example may not always be the best guide to PResidential actions.