'Lincoln's Constitution': Desperate Times, Desperate Measures

[R. A. Hettinga]

The usual statist apologia for statist apologia...

Cheers,
RAH
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<http://nytimes.com/2003/08/24/books/review/24POSNERT.html?pagewanted=print&position=>

The New York Times


August 24, 2003 

'Lincoln's Constitution': Desperate Times, Desperate Measures 
By RICHARD A. POSNER 


LINCOLN'S CONSTITUTION 
By Daniel Farber. 
240 pp. Chicago: The University of Chicago Press. $27.50. 

Since Sept. 11, 2001, the United States has been at war. It is a war unlike our previous wars, but it is a war nevertheless. War places law under pressure, and so it is timely to consider the pressure exerted on law by our previous wars, a pressure that was greatest during the Civil War. Hence ''Lincoln's Constitution,'' by Daniel Farber, a professor of law at the University of California, Berkeley, and the University of Minnesota. 

Farber addresses two topics. The first is the relation between the federal government and the states. Farber asks whether secession was lawful and, if not, what means were lawful to combat it. The second topic is the curtailment of civil liberties, and other constitutionally highhanded actions by Lincoln. Here the question is whether Lincoln upset the balance between the executive and the legislative and judicial branches of the federal government. 

Farber makes a workmanlike lawyer's case for the constitutionality of most of Lincoln's controversial measures, yet in doing so seems somehow to miss the point. In defense of suspending habeas corpus, a power that the Constitution seems pretty clearly to reserve for Congress (though Farber disagrees), Lincoln asked rhetorically and, as it seems to me, unanswerably, ''Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?'' 

In the weeks following Lincoln's inauguration, and indeed for the first two years of the war (until the almost simultaneous Union victories at Gettysburg and Vicksburg), the outcome of the Civil War was in doubt. Suspending habeas corpus may have been one of the measures that kept the Union going during this very dangerous period. The suspension not only enabled thousands of rebels and subversives to be detained without access to judges, many of whom were sympathetic to the Southern cause, but also showed Lincoln to be resolute, indeed ruthless, in the prosecution of the war. Resoluteness in times of great danger is essential to staving off defeatism; it goes some distance in explaining why Britain withstood the Nazi onslaught in 1940 and France did not. 

Farber is a law professor, not a historian. His method is that of close study of the constitutional text, the original understanding of the text's meaning and the Supreme Court's decisions interpreting and applying the text. The discussion is lucid and often ingenious, and the research, so far as I can judge, meticulous. But there is something rather odd about the enterprise, given that Farber is one of the relatively small band of law professors who explicitly defend pragmatism as the right way for judges and lawyers to think about law, especially American constitutional law. 

''Pragmatism'' for these purposes may be defined as an overriding concern for the practical consequences, long-term as well as short-term, of constitutional principles -- as distinct from a more lawyerly insistence that such principles be ''logically'' derivable from orthodox legal materials, like the constitutional text, its understanding by the text's authors or ratifiers and previous judicial decisions from which rules applicable to new cases can be deduced. The pragmatic approach is forward-looking, asking what the decision in a case will do for us, the living. The orthodox lawyer's approach is backward-looking, asking what outcome would have the longer or better legal pedigree -- that is, would correspond more closely to some authoritative enactment or pronouncement in the past. 

The greater the practical consequences of a legal principle or decision, the more attractive the pragmatic approach is. That makes it a natural approach to take to constitutional law. Not only does the Constitution deal with matters of great practical significance, but it is very hard to amend, which magnifies the consequences of judicial decisions construing it. The most critical episode in the history of the United States was the Civil War. Never was the need for adjusting the law to pragmatic realities greater. 

Farber is not oblivious of this issue -- how could he be? -- yet it barely figures in his analysis, which is preoccupied with esoteric questions like ''the precise locus of American sovereignty.'' He makes the interesting point that the Supreme Court's recent states' rights decisions echo some of the arguments made by Jefferson Davis in support of secession, but he comments unpragmatically that ''the fact that these arguments can be deployed even today and can win the assent of . . . justices proves their durability and continuing allure.'' Pragmatists doubt that abstract arguments are what move Supreme Court justices; those arguments are, rather, the rhetorical decor of decisions reached on other, more practical grounds. 

Those who think it would have been disastrous had the secession succeeded will be inclined to believe that Lincoln was right to suspend habeas corpus. Was he legally right? That is a different question. One answer is that whatever measures are necessary to save the nation from suicide are, if not compelled, at least permitted by the Constitution, whatever the text, history or precedents might seem to imply. There are no limits to lawyers' ingenuity, and Farber is able to generate plausible arguments for the constitutionality of most of Lincoln's acts. With a little more effort he could defend all of them as lawful. 

For example, Farber endorses a particularly facile ''legal'' justification for Lincoln's suspension of habeas corpus: that since the president can use deadly force against rebels, he should be allowed to detain them indefinitely. But habeas corpus enables a court to determine whether a detained person is a rebel. That is why we try criminals rather than lynch them. (Moreover, Farber slides too easily from the question of whether Lincoln was authorized to suspend habeas corpus to whether he was authorized to flout Chief Justice Roger Taney's order granting habeas corpus, as he did. Officials are obliged to obey judicial orders even when erroneous.) 

There is a pragmatic argument against this approach, an argument for saying that Lincoln was right to do what he did -- in fact had no choice -- but that what he did violated the Constitution. In this view, it would have been a kind of treason had Lincoln been scrupulous in observing the limitations that the Constitution placed on his authority. 

There is value in distinguishing what is right from what is legal in order to avoid creating precedents that subsequent presidents might invoke in less exigent circumstances. One wouldn't want presidential suspensions of habeas corpus to become a habit. Article 48 of the Weimar Constitution allowed the president of the German Republic to suspend the Constitution in situations of emergency. The presidents invoked the power frequently, creating precedents for Hitler to employ when he took power in 1933. That is a pragmatic argument for limiting the pragmatic interpretation of our Constitution. 

Nonetheless, when the pressure of the practical is as enormous as it was in the Civil War, the marking off of nice legal distinctions has almost a frivolous air. Farber argues that Lincoln acted unconstitutionally when at the outset of the Civil War he used government money to pay people to recruit soldiers for the Union Army, because there was no Congressional appropriation for this purpose, and when he invited volunteers to join the Regular Army, because the raising of armies is a Congressional prerogative. It is one thing to say that the Constitution reserves the ominous power to suspend habeas corpus for Congress, and another to say that the Constitution is to be interpreted so literally that a president must use subterfuge to raise armies during a national emergency. That is the kind of literalism that would forbid the creation of the Air Force as a separate branch of the armed forces because the Constitution authorizes Congress to create and regulate only land and nava!
l forces. It is curious to find a pragmatist like Farber sympathetic to such casuistry. 

But I do not want to end on a critical note. Farber has written a timely and important book, which should provoke fruitful discussion of enduring issues of civil liberties and judicial philosophy. 

Richard A. Posner's most recent book is ''Law, Pragmatism, and Democracy.'' He is a judge on the United States Court of Appeals for the Seventh Circuit. 

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R. A. Hettinga <mailto: rah at ibuc.com>
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