History 705

Farber is generally exploring what “rights” the states have under the U.S. Constitution.
He also asks if the executive has the right to supersede the other branches of government in a crisis such as the Civil War.
For Farber, the Civil war represents the deepest constitutional crisis. The main three categorizations are: 1. State Sovereignty vs. National Power, 2. Executive Authority vs. Congressional Prerogatives and Individual Rights vs. National Security.
In order to be as precise as possible, Farber employs four analytical tools to examine the events leading up to and including the constitutional crisis of the Civil War: 1. the language of the constitution, 2. historical context, 3. judicial precedents and 4. lessons of “our nation’s” history. It’s interesting that Farber excludes lessons from the histories of other nations and eras. Is the nature of the power created by the U.S. constitution that unique that it cannot be compared to Ancient Greece or Rome? Perhaps he would argue that never before in history had power been broken up in the way the framers had devised, but this couches his arguments in a literal reading of the constitution rather than including any psychological motivations. Farber is consciously making this decision. He is much more interested in the practicality of Lincoln’s actions rather than his psychological motivations. After all, Lincoln was a lawyer, regardless of what motivated him, his actions had to pass legal muster.
Farber contends Lincoln can be analyzed both in his own time and comparatively with modern presidents.
Farber posits four main Civil War Constitutional Issues: 1. whether secession is a state’s right, 2. Southerners use of the Kentucky and Virginia Resolutions as a precedent, 3. whether the president was authorized to use force to keep the Southern states in the union and 4. how far can the executive go in interpreting the law without being beholden to judiciary review?

While Lincoln took extreme actions at the outset of the war (suspending habeas corpus, blockading Southern ports, and enacting the Emancipation Proclamation), Farber feels Lincoln was taking the moral high ground. He proposes that while it appears Lincoln had to operate outside of the limits of the constitution in order to save it, he was actually acting within his constitutionally granted presidential powers. Farber also makes the point that Lincoln was acting as an individual rather than as a representative agent elected by the people.

In exploring the metaphysical ideas of the states, Farber argues that the states of the United States do not exist independently of the United States. Therefore, rather than being a group of sovereign states agreeing to a compact of union with other sovereign states, the existence of a “nation” supersedes the sovereignty of the individual states. Farber cites a close reading of the language used in the Constitution as supporting his argument. He also notes the issue arose in a recent Supreme Court case involving term limits.

In seeking to point out John C. Calhoun’s interpretation of the Constitution, Farber points out Calhoun (and the majority of Southerners) saw the power split of the constitution as much more equally balanced between the states and the Federal Government. Farber points out the nature of sovereignty is never specified in the Constitution. One can detect a hint of criticism in Farber’s line of inquiry. Why did the framers leave this crucial question in such a vague condition? Most revealingly, Farber contends Calhoun didn’t adhere to the notion of following the framers’ original intent. As Farber points out, if a slave advocating candidate had been elected president, would we consider secessionist New England states to be rogues and destroyers of constitutional purity if they decided to remove themselves from what they perceived as an immoral nation? Why can’t a state decide to leave the compact it has ratified if it no longer wishes to be a part of the union? Again, Farber contends the constitution is vague on this issue making original intent even more illusive. Farber insists that Lincoln was the right man for the job at the right time. Buchanan, Lincoln’s predecessor, was loath to force the states to remain in the union. Lincoln saw that in order to protect and defend the constitution, he had to take actions which some have claimed went beyond his authority. Farber corrects the record by insisting Lincoln was acting with power granted to him by law. The fact that he steered the Union to victory in the Civil War is tremendously significant. A defeat of the union would most probably have meant a defeat of the whole concept of the U.S. Constitution as we know it.

Farber concludes Lincoln’s actions during the crisis of the Civil War support the notion that the Constitution does not need to be suspended in a time of crisis. There are small protective powers held by the president which can be used to preserve the bigger set of laws in the long run.

Farber suggests that an important lesson arises when we consider the importance of the constitution in times of trouble like September 11, 2001. During a crisis like that one, the authoritative powers of the Federal government become a necessity. We are pushed to the limits of our existence as a nation.

Again, Farber praises Lincoln’s character in time of crisis. The implication is that with another president, the outcome of the Civil War may have been drastically different or even reversed.

Jason Gelman

Hist 705, Professor KC Johnson

Study questions on Farber’s Lincoln’s Constitution

1) In many ways Farber’s book is a response to revisionist historians who claim that Lincoln was a dictator. Does the author prove that Lincoln’s actions during the Civil War were constitutional and justified?

2) Farber uses historical analysis and modern constitutional law to show that Lincoln’s behavior was (for the most part) lawful and rooted in past constitutional thinking. What are the strengths and weaknesses of using modern law? Could the argument be made that this is reading history backwards?

3) The Civil War revolved around the issue of sovereignty. As we’ve seen this was a major question since the nation’s founding. Was sovereignty located in the states individually or the American people as a whole? What does Farber conclude about this debate? How does he relate governmental power to the concept of sovereignty?

4) The nullification crisis of 1832 was a prelude to the Civil War. What do you make of Calhoun’s arguments for state nullification and Madison’s response? (p. 62-69)

5) Supporters of secession provided two arguments for their position. (Chap 4 & 5) First, they stated that the states had this right under the Constitution, either through the compact theory of sovereignty or the right to “reverse” ratification of the Constitution. Second, secession was justified as an extraconstitutional act, one that was akin to the American Revolution. Farber’s arguments against these propositions are multifaceted.

**Consider how Farber uses text from the Constitution and original intent to make his case. Is he persuasive? In addition, what are his specific responses to the idea that secession was a morally justified revolution similar to the one that occurred in 1776?

6) Has the vagueness of Article II left us in a constitutional void with regards to the presidency?

If so, have presidents, including Lincoln, exploited this void? (Analysis of Article II is in Chapter 6)

7) Did Lincoln forever alter the balance between the executive and legislative branches? Was his administration the beginning of the “imperial presidency”?

8) Lincoln’s harshest critics view his treatment of individual rights as antithetical to the Constitution and most deserving of the dictator label. One of the most controversial actions was Lincoln’s suspension of habeas corpus. Where does Farber stand on this critical issue? What constitutional and practical evidence is examined in his argument? Can we draw any lessons for today?

9) We’ve debated whether the Constitution is a “political” or “legal” document. Has your view been altered by this book?

10) Counterfactual: Jefferson is considered the patron saint of the states’ rights movement (even though his views were stretched by Calhoun and others). If Jefferson was not overseas in 1787 he would have most likely attended the Constitutional Convention. What would have been the consequences for his career and the future cause of states’ rights?