Study Questions For “Lincoln’s Constitution”

History 743.4

David Imparato


How did the issue of slavery become “unglued” after the Compromise of 1850?


What did the opposing sides of the slavery question want to achieve during the 1850’s?


Describe the Buchanan Administration’s response to secession.


What steps did President Lincoln take with regard to secession upon taking office?


What was controversial about President Lincoln’s use (or misuse) of executive power?


Why does Farber believe that the Civil War put the rule of law “to its greatest test?”


What form of sovereignty was debated prior to the Civil War?


According to Forbes, what were the three conflicting views of Union sovereignty?


Why is the phrase, “We the People of the United States” a key to understanding the arguments about sovereignty?


What are some factors that would lead one to a nationalistic version of the country’s founding?  What about state compact theory?


What is the importance of George Washington’s letter to the Constitutional Convention?


How do the powers of the federal government as enumerated in the Constitution, add to the arguments about sovereignty?


What course of action did Republicans take in 1798?


What were the Kentucky Resolutions?  The Virginia Resolutions?  How did other states view these Resolutions?


What was the Supreme Court’s view of sovereignty?  What important cases did the Marshall Court hear regarding this issue, and what decisions did it reach?


What issue impacted sovereignty in the early 1830’s?


What was nullification?  What was John C. Calhoun’s justification for this doctrine?


What was President Jackson’s view of nullification?


According to Calhoun, how would disagreements about constitutional issues be resolved?

Besides nullification, what other changes in the U.S. government did Calhoun deem necessary to preserve state power?


What was James Madison’s view of nullification?


Why does Farber write that secession is a “tougher legal issue than nullification?”


What did the advocates of secession rely on to support their arguments?  


Why did the new Republican Party focus on slavery in the territories?  Why did Southerners view this issue as vital?


What happened at the Democratic Convention in Charleston in 1860?


How did Jefferson Davis defend the constitutionality of secession?  What was Lincoln’s view of secession?


What were the arguments for secession?  Why does Farber find them unpersuasive?


What arguments can be made about secession based on the text of the Constitution?  Based on the debates at the Constitutional Convention?


What did President Buchanan think the federal government could do with regard to the seceding states?  Why did he think they couldn’t be “coerced” back into the Union?  On what basis does Farber criticize Buchanan’s take on this issue?


What do more recent Supreme Court cases such as New York v. United States and Printz v. United States tell us about the power of the federal government to coerce the states?


What arguments were made in favor of secession as revolution?  Secession as self-determination?


To what extent should the casualties suffered in the Civil War influence our view as to whether it was worth ending secession?


What steps did President Lincoln take to end secession?


What was Chief Justice Taney’s view of Lincoln’s use of executive power, as discussed in Ex Parte Merryman?


Discuss Article II of the Constitution with regard to Lincoln’s use of executive power.  Why does Farber think that it fails to “offer decisive guidance?”


What do the Supreme Court’s decision in the Steel Seizure Case and Dames & Moore v. Regan tell us about the limits of executive power?


What was the importance of the Prize Cases?


What was the legal significance of the Union blockade of Confederate ports?


In what settings did military rule supplant civilian government during the Civil War?


What is the significance of the Supreme Court’s ruling in the line of cases beginning with Luther v. Borden to the issue of martial law?


What was the legal basis for the Emancipation Proclamation? 


What was the legal basis for the suspension of the writ of habeas corpus? 


What was the legal basis for the use of trial by military commission in northern states?  What happened in the Supreme Court case Ex Parte Milligan?


What the First Amendment violated with the conviction of Clement Vallandigham? 



Study and Review Questions: Lincoln’s Constitution

Daniel Goldstein


  1. What are the three approaches to the source of American sovereignty following independence? What was Lincoln’s approach? What was Calhoun’s?


  1. Does the language of the Constitution point to the nationalistic-people compact theory or the state compact theory? If to both, how can the ambiguities be explained?


  1. At the end of his discussion of sovereignty, Farber writes, “In practical terms, then, the key issue was not sovereignty but power.” (p.44) How do the Marshall court, on the one hand, and the Kentucky and Virginia Resolutions, on the other, relate to this assertion?


  1. According to the reasoning of John Calhoun, how did the development of a two party system, not foreseen by the Framers, demand the need for strong states rights.


  1. How do nullification and the right to secession flow from the same argument? Can one logically accept one while rejecting the other? On what grounds did Madison reject nullification?


  1. What are the two arguments favoring the right of intra-constitutional secession? On what grounds are they to be rejected? Would secession ever be acceptable in Lincoln’s framework?


  1. What was the Buchanan administration’s position on coercion? What are the fallacies of the argument? (What are ‘ghost states’?)


  1. What are the two arguments for extra-constitutional secession? (What was Lincoln’s “Spot Resolution” during the Mexican American War?)  Do you agree that secession is tantamount to anarchy?


  1. What are two approaches relating to presidential power in the constitution? What proofs can be brought to support each?


  1. What is the difference between the “inherent power” theory, the “vesting clause” theory, and the “take care” clause theory?


  1.  What was Justice Jackson’s three pronged test of presidential authority? Did Lincoln’s war time orders pass the test?


  1. How would the civil libertarian purist view the possibility of martial law? What were the Court’s positions on martial law? What were Lincoln and Taney’s opinions regarding habeas corpus? How did Lincoln justify suspension of free speech?


  1. What is Farber’s theory of presidential duty to obey judicial rulings? (Do you think Marshall would have agreed?)


  1. Farber tracks a retreat from Lincoln’s earlier position of the absolute authority of the law. How does this retreat relate, if at all, to his various public responsibilities.


  1. In his discussion of martial law, Farber refers to Congress’s justification on the grounds of “self-preservation”. How much of Farber’s view of presidential power is predicated on that same notion?


  1. Did Lincoln assume the role of dictator? Is there such thing as a good dictator?


  1.  We pride ourselves as a society based on the rule of law, not of men. In reality, can a society purely based on the rule of law exist?


Study Questions for Lincoln’s Constitution, by Daniel Farber.
-Laura Eisner

1.      What are Farber’s two main arguments about Lincoln’s actions during the Civil War? How does he structure his arguments?

2.      What types of evidence does Farber use? Are his arguments well made even when the evidence he uses is ambiguous?

3.      What types of arguments does Farber make? Is there a difference between the validity of text/evidence based arguments and logic/practical ones?

4.      How do we see continuity in the nature of constitutional arguments and discourse from the 18th century, through secession and the Civil War, until today?

5.      Farber often discusses the Framers’ intent. Does intent matter? Can it be used to support an argument about the government’s actions?

6.      How does Farber’s treatment of Lincoln compare with Smith’s treatment of Marshall?

7.      Why did Lincoln feel it necessary to stretch the constitutional limits of his power, and even do things that Farber claims were unconstitutional? Were these actions really necessary? Why do you think Lincoln thought these actions were necessary?

8.      How is Lincoln’s character and personality central to how he dealt with the Civil War crisis?

9.      If we buy Farber’s analysis and interpretation of Lincoln’s actions during the Civil War, what are the ramifications for understanding how the Constitution operates today? How is this interpretation relevant today?