Lincoln's Constitutionby Daniel A. Farber
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In Lincoln's Constitution Daniel Farber leads the reader to understand exactly how Abraham Lincoln faced the inevitable constitutional issues brought on by the Civil War. Examining what arguments Lincoln made in defense of his actions and how his words and deeds fit into the context of the times, Farber illuminates Lincoln's actions by placing them squarely within their historical moment. The answers here are crucial not only for a better understanding of the Civil War but also for shedding light on issues-state sovereignty, presidential power, and limitations on civil liberties in the name of national security-that continue to test the limits of constitutional law even today.
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By Daniel A. Farber
University of Chicago PressCopyright © 2004 Daniel A. Farber
All right reserved.
Chapter 1: The Secession Crisis
The Civil War began in the chilly morning hours of April 12, 1861, when a Confederate battery opened fire on Fort Sumter. Major Robert Anderson, the U.S. Army commander in Charleston, South Carolina, had moved his forces to Sumter from a more vulnerable position at nearby Fort Moultrie. In the next two days, a thousand shots were fired by the fort and three thousand by the attackers. After being battered for thirty-three hours, Anderson gave in to the inevitable. The American flag came down on the afternoon of April 14. Despite the ferocious crossfire, not a single soldier was killed in the battle itself. At the surrender ceremony, however, one of the guns used to salute the flag went off prematurely, killing Private Daniel Hough.
Despite initial expectations on both sides, the war was neither short nor easy. The early morning shots of April 12 began the bloodiest war in American history. It was four years to the day later when Major Anderson ran the U.S. flag back up at Sumter. In the meantime, the world had forever changed. "By then," in the words of a leading historian, "[s]lavery was dead; secession was dead; and six hundred thousand men were dead." "That," he added, "was the basicbalance sheet of the sectional conflict."
Later that same day, April 12, 1864, yet another price was added to that balance sheet. As the war had begun with the death of a single individual, so it would end. That evening, just about the time Major Anderson toasted the president of the United States, John Wilkes Booth entered the presidential box at Ford's Theater. By the next morning, Lincoln was dead.
Thus, the first modern wara war in which death had virtually become an item of mass productionwas bracketed by the deaths of a single private and a president. Many wondered during the conflict whether the Constitution would also be a casualty of war. Lincoln had said that the Constitution was on trialthat the issue was whether "government of the people, by the people, and for the people, would perish from the earth."
Others must have questioned whether the Constitution would survive Lincoln's own efforts to save it. Like modern-day chemotherapy, the cure seemed nearly as dangerous as the disease. Without direction from Congress, Lincoln had taken the nation to war. He had curtailed individual liberties by suspending habeas corpus and instituting military trials. Lincoln himself had asked, "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?" It was not irrational to fear that those liberties might also be casualties of war.
The constitutional issues of Lincoln's time are not important purely for historical reasons. The Civil War was a unique epoch in American history. But questions about state sovereignty, federal authority, presidential power, and civil liberties have recurred again and again. Even today, the Supreme Court wrestles with these issues. Lincoln has been something of a paradigm for later presidents, and the Civil War was a defining moment for modern federalism. Legal theories about these constitutional issues need to be tested against the events of that period. At times, the relevance of these issues may seem to recede. But as recent events have shown, we can never take for granted the nation's power to maintain its security while upholding the rule of law.
Before addressing the constitutional issues, we need some historical context. We will return to some of the history in more detail in connection with specific legal issues. Even so, the historical descriptions in this book do not pretend to be a substitute for the extensive treatments by experts on the period. Building on the work of those scholars, the historical discussions are intended only to provide background for understanding the constitutional issues. Our main focus is on the constitutional analysis.
In constitutional terms, Fort Sumter was both the end of one era and the beginning of another. It ended a long political struggle over slavery and states' rights. These constitutional disputes had bedeviled the nation since the beginning. Sumter also began a military struggle that raised constitutional issues of its own. Our emphasis will be on the legal issues rather than on history for its own sake, but readers who are not immersed in the history are entitled to some orientation. We begin, then, with the issue that eventually divided the nation to the point of civil war.
A House Divided
Where to start? Perhaps with a sultry night in Washington in 1846, when a previously unknown representative named Wilmot proposed that any territory acquired from Mexico be kept free from slavery. But of course, the slavery issue already had a long history. By 1820, Missouri's effort to join the Union had led to a crisis, ending with the compromise solution of limiting future expansion of slavery north of a line drawn at thirty-six degrees, thirty minutes. The battle over the extension of slavery to new territories was reignited by the war with Mexico. Some, like Wilmot, argued that Congress had the power to forbid slavery in the territories, as had been done in the old Northwest Ordinance before the Constitution was even adopted. Led by John C. Calhoun, some Southerners responded that the territories were held in trust by the federal government on behalf of all the states, and that discriminating against the institutions of the slave states would be unconstitutional. By 1820, some Southern states were threatening secession if the Wilmot Proviso were adopted. But the crisis was defused by the Compromise of 1850, designed by Henry Clay but actually pushed through Congress by Stephen A. Douglas. By assembling separate coalitions on different parts of the compromise, Douglas obtained passage of a package that included something for each side. For the North, the compromise admitted California as a free state and abolished the slave trade in the District of Columbia. For the South, it strengthened the Fugitive Slave Act and created the New Mexico and Utah territories without the Wilmot Proviso. The slavery issue had been safely settled.
Or so it seemed. The story of the 1850s is in large part the saga of how this apparent settlement of the slavery issue came unglued. In the process, the conflict destroyed the Democratic party as a national institution, taking Stephen Douglas along with it. It also created the Republicans as a sectional party, ultimately leading to Lincoln's election. The combined effect was to produce Lincoln's election and the secession crisis. The process was incredibly complicated, but we can focus on three major contributing factors.
First, enforcement of the Fugitive Slave Act horrified Northerners. The spectacle of escaped slaves being dragged away in manacles roused public opinion against slavery. The number of slaves who escaped to the North was quite small, and few who did were ever returned under the act. The South paid a heavy price in Northern anger and resentment for a statute whose value to slave owners was largely symbolic.
Second, Douglas unwittingly reignited the issue of slavery in the territories with his Kansas-Nebraska Act. Douglas was eager to organize these territories in order to pave the way for settlement and a transcontinental railroad. By adopting "popular sovereignty," thereby leaving control of slavery to the territorial legislature, Douglas hoped to finesse the slavery issue and keep it off the national agenda. His tactic backfired. Northerners were appalled by the repeal of the Missouri Compromise. Implementation of the statute was also a disaster. Kansas became the scene of bloodshed as rival groups of Northerners and Southerners vied for control. Worse, the Buchanan administration broke its pledges and endorsed the fraudulent, proslavery Lecompton constitution for Kansas. This was intolerable to Douglas, who broke with the administration. When Buchanan threatened to destroy him politically, reminding him that Jackson had destroyed his own opponents within the Democratic party, Douglas was not impressed. "Mr. President," he replied, "I wish you to remember that General Jackson is dead." But despite this bravado, Douglas had to fight for his political life against Buchanan. The schism between the two men badly damaged the Democratic party in the North, thereby strengthening the emerging Republican party.
Third, the Supreme Court made its own disastrous miscalculation in the Dred Scott case. Dred Scott v. Sandford began as a relatively simple dispute over Scott's status, but developed into a complex legal snarl. Scott brought suit in Missouri, where he was held as a slave, arguing that he had become free as a result of his former residence with his master in Illinois and in the Minnesota territory. The Supreme Court was initially ready to dispose of the case on relatively narrow grounds. For reasons that are still disputed, however, the majority decided instead to take on the slavery issue once and for all. Chief Justice Taney's opinion for the Court had two major holdings. First, blacks could never become citizens of the United States (nor, for federal constitutional purposes, of the states where they lived). Second, Congress lacked the power to ban slavery in the territories. The case was a true trainwreck. Taney's opinion is widely agreed to be an intellectual disgrace. Because several concurring opinions were filed, historians still dispute just what parts of Taney's opinion had the support of a majority of the justices. As it turned out, Buchanan had not only been informed about the opinion prior to its release but played an active role in bringing one key justice into the majority. Despite the Court's hopes of finally putting the vexing issue of slavery to rest, its opinion had the opposite effect.
Douglas was typical of those who wished to keep the slavery issue off the national political agenda. On both sides of the Mason-Dixon line, however, significant and vocal groups wanted more. An increasingly outspoken group of Southerners insisted that federal neutrality on the slavery issue was not enough. They called for active federal support, taking the form of a federal slave code for the territories. Unlike earlier generations of Southerners, typified by Jefferson, they viewed slavery not as a necessary evil but rather as a positive good. It provided the foundation for a gracious and proud white society, they argued, while benefiting blacks who would otherwise live in savagery. They viewed Northern "agitation" on the slavery issue as an intolerable insult, as was Northern resistance to the Fugitive Slave Act. Fearful that Northern agitation would appeal to nonslaveholding Southerners and perhaps even goad the slaves to revolt, they demanded that the North silence all antislavery voices. Their fears and their anger were heightened by John Brown's raid on Harpers Ferry, particularly since prominent antislavery figures had given Brown some support. Threats of secession, if their demands were not met, became increasingly common.
On the other side were both abolitionists and less zealous antislavery men like Lincoln. Lincoln, speaking for the loose coalition that was drawn into the Republican party, explained their obstinacy on the slavery issue. Despite pleas that the agitation about slavery should be ended, Lincoln did not believe this would be possible "until a crisis shall have been reached, and passed." For, he observed, a "house divided against itself cannot stand." The government could not endure permanently half slave and half free. Ultimately, it "will become all one thing, or all the other." Either its opponents would "arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction," or its advocates would succeed in foisting it on the whole nation.
In his debates with Douglas, Lincoln made his moral condemnation of slavery clear. He did not contend for complete social or even legal equality for blacks. Nevertheless, he held that blacks were "entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness." Though blacks might not be the equals of whites, slavery was morally wrong. Less racist than most around him, he nevertheless did not repudiate racism in terms that we would demand today. Lincoln acknowledged that a black man "is not my equal in many respectscertainly not in color, perhaps not in moral or intellectual endowment." "But," he continued, "in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man." When Douglas invited the people of a territory to adopt slavery if they desired, Lincoln declared, "[H]e is in my judgment penetrating the human soul and eradicating the light of reason and the love of liberty in this American people."
Earlier, Lincoln had addressed the constitutional status of slavery. The Framers, he claimed, regarded it as a necessary evil. "They found the institution existing among us, which they could not help." But the Constitution carefully avoided even using the word slavery, resorting instead to circumlocutions like a "PERSON held to service or labor." With this language, Lincoln said, "[ T ]he thing is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death." Less than this the Framers "could not do; and [MORE] they couldnot do." And the earliest Congresses took the same view of slavery: "They hedged and hemmed it in to the narrowest limits of necessity." Thus, Lincoln said, existing rights to slaves had to be respected, but no extension of slavery could be tolerated.
The end of the 1850s found the nation poised on the brink of disaster. The Democratic party was shattered by Southern demands that the party repudiate popular sovereignty and endorse a slave code. The Republicans had a strong base of support in the North. By nominating a moderate "westerner" like Lincoln, they could pick up Illinois and other swing states in the North. By the time it was actually held, the election of 1860 was almost a foregone conclusion. Although Lincoln was outvoted nationally by supporters of Douglas and other candidates, the Republicans' strength in the North gave them the electoral college and the presidency. Key figures in the South had already announced that living under a Republican president was utterly unacceptable to them.
This account has stressed the slavery dispute as a cause of the Civil War. Slavery was not, of course, the only source of division between North and South. The South differed in many ways from the North. It was far more agrarian, giving it strikingly different interests in connection with such issues as the tariff. It was more intellectually isolated, with a weak educational system, a sparse publishing industry, and a largely parochial view of the world. The white population was more ethnically homogenous. The South also aspired to a kind of aristocratic grace and nobility, with a strong emphasis on personal honor, foreign to the more commercial North. All of these differences were real and would have caused trouble, slavery or no slavery. But modern historians seem agreed that the slavery issue was critical to the ultimate breakdown of the Republic.
THE ROAD TO CIVIL WAR
In the Deep South, the reaction to Lincoln's election was immediate. Even before the results were in, Southern fire-eaters had warned that Lincoln's election would dissolve the Union. The governor of South Carolina had opened correspondence in October with other Southern governors about ways and means of pursuing secession. Within three weeks of the election, conventions to consider secession were called in South Carolina, Alabama, Mississippi, Florida, and Georgia. In the early afternoon of December 20, the South Carolina convention voted to secede. Georgia, Mississippi, Florida, Alabama, Louisiana, and Texas followed by the end of January. Within another week or so, delegates from these states had met in convention, adopted a constitution closely modeled after that of the United States, and elected Jefferson Davis as provisional president. All this was accomplished well before Lincoln was scheduled to take office in March.
The North's initial response to secession was hampered by the weakness of the Buchanan administration. Buchanan had never been much of a president. He was a good administrator and might have made a good judge, but he was too timid, indecisive, and intellectually inflexible to take decisive initiative in a crisis. Though he was from Pennsylvania, he had also hewed closely to the Southern line throughout his political career. Rather than providing leadership, he was often managed by his cabinet, which was dominated by Southerners. When outvoted in the cabinet, he would give way. He was further hampered by his lame-duck status during the secession crisis.
Buchanan's view was that secession was unconstitutional, but that the federal government could not constitutionally coerce states to remain in the Union. At most, the federal government could use force only to protect its own property. If an immediate explosion could be prevented, he hoped that he could eventually defuse the crisis. These views were not well received by Northerners, who considered them spineless. Yet they also irritated Southerners who considered secession to be a constitutional right.
Between the election and Lincoln's inauguration, the two sides moved toward a collision. On December 26, finding his position at Fort Moultrie untenable, Major Anderson shifted his forces during the night to Sumter. Southerners were outraged at this initiative. The federal government also inched toward a firmer position. Buchanan's cabinet was reshuffled, resulting for the first time in control by supporters of the Union. Buchanan apparently was open to the idea of negotiating with commissioners sent by South Carolina, but he was beaten down by the opposition of two key cabinet members. Efforts to reach a compromise in Congress with the South petered out. Led by Kentucky senator Crittenden, a select committee proposed constitutional amendments shielding slavery from congressional interference. Congress approved an amendment that would forbid any future interference with slavery in the states. Northerners such as Lincoln were willing to go along with this amendment because they thought it did little more than restate the existing limit on congressional power. But Lincoln and his allies would not give way on the issue of slavery in the territories, which was the central tenet of their party. The compromise effort foundered as a result.
Excerpted from Lincoln's Constitution by Daniel A. Farber Copyright © 2004 by Daniel A. Farber. Excerpted by permission.
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Meet the Author
Daniel Farber is the Sho Sato Professor of Law at the University of California, Berkeley, and the McKnight Presidential Professor of Public Law at the University of Minnesota. He is the author or coauthor of five books, including Eco-pragmatism: Making Sensible Environmental Decisions in an Uncertain World and, with Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, both published by the University of Chicago Press.
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