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Lincoln's Constitution
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.
256 pages, Hardcover
First published May 15, 2003
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May 11, 2025
The very thoughtful legal arguments in this 22-year-old book seem almost quaint today. In carefully and meticulously dissecting the decisions and examining the legality and constitutionality of President Lincoln’s wartime actions, the book far predates last year’s Supreme Court decision granting the president extraordinary immunity for official acts, as well as the current administration’s resolute assertion of executive authority. Critics who have gone revisionist on Lincoln and accuse him of exercising dictatorial powers, seem rather less concerned about these more current events.
But enough about modern times. This is a short, but dense and detailed, book that examines every potentially-legally-problematic move Lincoln made as president, and explains when he was justified and where he may have overstepped his authority. In doing so, however, Farber comes across not so much as an impartial judge rendering a verdict, as he does Lincoln's defense attorney. So in Farber’s telling, Lincoln is not always on solid legal ground, but he is always right.
That’s not necessarily to say I disagree with his arguments. But any effort to justify the legality of Lincoln’s decisions tends to have an ex post facto feel to it, beginning with the presumption that he was right and then tailoring the arguments to reach that conclusion.
More than half the book deals with the legality, or otherwise, of secession and whether Lincoln was justified in waging a war to stop it. Farber apologizes to the reader in advance, that the first few chapters may be “abstruse,” as they provide detailed background on the discussions, drafting and subsequent interpretations of the Constitution. And abstruse they are, though the argument over whether secession was legal ultimately hinges on the question of whether the country is a collection of people bound together as part of an indivisible nation, or a collection of states who are at-will members of that nation.
Farber concedes that there’s no clear answer, any more than society can be said to be “composed of individuals or families.” But in going point-by-point through pro-secession arguments, he refutes them all and concludes that the preponderance of evidence and Supreme Court decisions in favor of federal power make it much harder for states’ rights proponents of secession to support their case. He interprets the Constitution’s silence on the matter as disapproval - if the Founders wanted to provide states with an exit option, they would have done so explicitly. And in other scenarios, “when the law requires voluntary consent to an agreement, it does not always allow voluntary withdrawal,” he writes, “just as either party can prevent the formation of a contract but only both together can rescind it.”
So about halfway through the book, Farber concludes his case that Lincoln was justified in fighting against secession and trying to restore the Union. But Lincoln’s methods of doing so leave much more to discuss.
Some of Lincoln’s decisions are defended briefly and definitively. Books have been written about the legality of the Emancipation Proclamation; Farber defends it in a few pages, saying that seizure and destruction of enemy property is justified in wartime. Enslaved people obviously couldn’t be “destroyed,” so freedom was the necessary substitute. And imposing martial law may look extreme from our vantage point, but Farber argues it was a necessary substitute for what was a weak federal law enforcement capability at the time. Without an FBI or a modern Justice Department, “the county sheriff in Gettysburg,” for example, “was obviously in no position to maintain normal law enforcement.”
In other cases, Farber concedes that Lincoln may have gone too far, but largely excuses him. Allowing for military arrests and trials of civilians in the North, and clamping down on free speech and the free press may have been “unnecessary,” “unjust” and “regrettable,” but “perhaps understandable” under the circumstances.
Other actions on Lincoln’s part may not seem as egregious, but Farber concludes they were more clearly unconstitutional. Among Lincoln’s first actions after Fort Sumter were expanding and appropriating funds for the regular army, which were very clearly not the president’s prerogative. But Farber notes that he did so in anticipation of retroactive approval from Congress once it was in session, which did occur. So Lincoln was not asserting dictatorial unconstitutional control, but was prepared to seek validation for his actions and was prepared to accept the consequences if he was later found to have acted incorrectly. “Circumstances might make an unlawful action necessary for the good of the nation,” Farber writes, “but the president remained answerable for the violation of the law.”
In the end, the Constitution is not perfect, and the Founders did not anticipate every potential scenario, so there are simply not clear-cut answers to many constitutional questions. And compared to the ludicrous position of Lincoln’s predecessor, James Buchanan, who argued that secession was unconstitutional but that the government was powerless to prevent it, certain situations demand bolder action on the part of the president, even if its legality is initially unclear. “Presidents have not waited for statutory authority to take necessary actions” both before and after Lincoln, Farber observes. “The public often does expect the president to take decisive action, with or without specific legal authority,” even though the line between bold action and autocracy has not - and may never be - definitively established. If Lincoln really wanted to be a dictator, though, he could have gone much further than he did; instead, he took great pains to act within his understanding of what was permissible, displaying an “ability to combine ruthless pragmatism and a deep fidelity to principle.”
Early in the book, Farber asks a couple of questions that even he can’t fully answer. “Regardless of the legal or theoretical niceties, would it have been better in the long run simply to have let the South go in peace?” And is the concept of secession more unpalatable to us today, because the South did it in support of slavery? After all, Farber writes, “if Jefferson Davis had won the U.S. presidency on a proslavery platform and New England had attempted to secede, no doubt our attitude toward secession would be more favorable. Yet the legal issues would be the same.”
But would the conclusions we reach about those legal issues be the same? It’s easier to defend Lincoln, to conclude that he had “not a perfect record, but a creditable one, under incredibly trying circumstances,” than it would be to defend a President Davis for waging war to bring New England back into the Union and coerce them into embracing slavery. So Farber’s arguments are convincing, but it’s a lot easier to argue after the fact, in support of the winning side.
This is a very dense, academic book for a layman like me with no background in the law. And it doesn’t definitively end the debate over Lincoln’s actions. But after a careful reading, it sure gives you plenty to think about.
But enough about modern times. This is a short, but dense and detailed, book that examines every potentially-legally-problematic move Lincoln made as president, and explains when he was justified and where he may have overstepped his authority. In doing so, however, Farber comes across not so much as an impartial judge rendering a verdict, as he does Lincoln's defense attorney. So in Farber’s telling, Lincoln is not always on solid legal ground, but he is always right.
That’s not necessarily to say I disagree with his arguments. But any effort to justify the legality of Lincoln’s decisions tends to have an ex post facto feel to it, beginning with the presumption that he was right and then tailoring the arguments to reach that conclusion.
More than half the book deals with the legality, or otherwise, of secession and whether Lincoln was justified in waging a war to stop it. Farber apologizes to the reader in advance, that the first few chapters may be “abstruse,” as they provide detailed background on the discussions, drafting and subsequent interpretations of the Constitution. And abstruse they are, though the argument over whether secession was legal ultimately hinges on the question of whether the country is a collection of people bound together as part of an indivisible nation, or a collection of states who are at-will members of that nation.
Farber concedes that there’s no clear answer, any more than society can be said to be “composed of individuals or families.” But in going point-by-point through pro-secession arguments, he refutes them all and concludes that the preponderance of evidence and Supreme Court decisions in favor of federal power make it much harder for states’ rights proponents of secession to support their case. He interprets the Constitution’s silence on the matter as disapproval - if the Founders wanted to provide states with an exit option, they would have done so explicitly. And in other scenarios, “when the law requires voluntary consent to an agreement, it does not always allow voluntary withdrawal,” he writes, “just as either party can prevent the formation of a contract but only both together can rescind it.”
So about halfway through the book, Farber concludes his case that Lincoln was justified in fighting against secession and trying to restore the Union. But Lincoln’s methods of doing so leave much more to discuss.
Some of Lincoln’s decisions are defended briefly and definitively. Books have been written about the legality of the Emancipation Proclamation; Farber defends it in a few pages, saying that seizure and destruction of enemy property is justified in wartime. Enslaved people obviously couldn’t be “destroyed,” so freedom was the necessary substitute. And imposing martial law may look extreme from our vantage point, but Farber argues it was a necessary substitute for what was a weak federal law enforcement capability at the time. Without an FBI or a modern Justice Department, “the county sheriff in Gettysburg,” for example, “was obviously in no position to maintain normal law enforcement.”
In other cases, Farber concedes that Lincoln may have gone too far, but largely excuses him. Allowing for military arrests and trials of civilians in the North, and clamping down on free speech and the free press may have been “unnecessary,” “unjust” and “regrettable,” but “perhaps understandable” under the circumstances.
Other actions on Lincoln’s part may not seem as egregious, but Farber concludes they were more clearly unconstitutional. Among Lincoln’s first actions after Fort Sumter were expanding and appropriating funds for the regular army, which were very clearly not the president’s prerogative. But Farber notes that he did so in anticipation of retroactive approval from Congress once it was in session, which did occur. So Lincoln was not asserting dictatorial unconstitutional control, but was prepared to seek validation for his actions and was prepared to accept the consequences if he was later found to have acted incorrectly. “Circumstances might make an unlawful action necessary for the good of the nation,” Farber writes, “but the president remained answerable for the violation of the law.”
In the end, the Constitution is not perfect, and the Founders did not anticipate every potential scenario, so there are simply not clear-cut answers to many constitutional questions. And compared to the ludicrous position of Lincoln’s predecessor, James Buchanan, who argued that secession was unconstitutional but that the government was powerless to prevent it, certain situations demand bolder action on the part of the president, even if its legality is initially unclear. “Presidents have not waited for statutory authority to take necessary actions” both before and after Lincoln, Farber observes. “The public often does expect the president to take decisive action, with or without specific legal authority,” even though the line between bold action and autocracy has not - and may never be - definitively established. If Lincoln really wanted to be a dictator, though, he could have gone much further than he did; instead, he took great pains to act within his understanding of what was permissible, displaying an “ability to combine ruthless pragmatism and a deep fidelity to principle.”
Early in the book, Farber asks a couple of questions that even he can’t fully answer. “Regardless of the legal or theoretical niceties, would it have been better in the long run simply to have let the South go in peace?” And is the concept of secession more unpalatable to us today, because the South did it in support of slavery? After all, Farber writes, “if Jefferson Davis had won the U.S. presidency on a proslavery platform and New England had attempted to secede, no doubt our attitude toward secession would be more favorable. Yet the legal issues would be the same.”
But would the conclusions we reach about those legal issues be the same? It’s easier to defend Lincoln, to conclude that he had “not a perfect record, but a creditable one, under incredibly trying circumstances,” than it would be to defend a President Davis for waging war to bring New England back into the Union and coerce them into embracing slavery. So Farber’s arguments are convincing, but it’s a lot easier to argue after the fact, in support of the winning side.
This is a very dense, academic book for a layman like me with no background in the law. And it doesn’t definitively end the debate over Lincoln’s actions. But after a careful reading, it sure gives you plenty to think about.
December 20, 2025
Really informative read that’s accessible for non-specialists like me. It’s interesting reading this book in 2025 when issues of presidential authority and constitutional interpretation are particularly prescient. Farber does a good job explicating some of the thorny issues of constitutional law surrounding Lincoln and the Civil War, demonstrating how the legal case is almost never one-dimensional. His chapters on sovereignty and secession are especially helpful. Farber regularly works to justify Lincoln’s behavior, though a couple acts are explained as crossing the line. It ends with a rousing (if approaching “great man” history) reminder of the importance of strong character in our leaders.
April 11, 2019
Thoughtful and illuminating. This is a quite detailed look at Constitutional issues of the Lincoln presidency. More than that, it uses the Lincoln presidency as a lens to consider broader issues of American government: the nature of the American Union and its federal system, the scope and limits of Presidential, Congressional and Judicial power, separation of powers and the system of checks and balances, and the administration of government in war and times of emergency.
March 30, 2016
Such a very interesting and well-done book. And it deals with such important topics. Abraham Lincoln is justly revered for many good reasons, but he is often criticized for taking unconstitutional action during the Civil War. This book looks at Lincoln’s actions and analyzes them, both under the existing constitutional thought of his time and later constitutional developments. Farber does a very good job at it.
The first half of the book addresses the secession crisis and the arguments that swirled around it. For example, what is sovereignty, and who possessed it? Who had it before the Constitution? The states? The nation? The people? Was there even a nation before the Constitution? Once the Constitution was ratified, what sovereignty was entrusted to which governments, or which people? Did the Constitution establish a perpetual union, or could the states secede? If so, who decides? Can the states leave unilaterally, or do all the states in the Union, like the parties to a contract, have to agree? And if secession was illegal, was it legitimate to use force to stop it? Buchanan thought not, but Lincoln disagreed. As Farber points out, a lot of these questions are like the old question of whether Lady Macbeth had children – the text doesn’t answer, but there is a lot of interesting historical and legal evidence to support the different positions. Farber does a wonderful job of explaining all the different arguments and evaluating them. I agree with his assessment that Lincoln had the better argument on these points, but there is a lot in these arguments that is still current, as he shows in his discussion of more recent Supreme Court cases about state vs. federal power.
The second half of the book covers more familiar territory – executive power and individual rights. In these chapters, Farber explores these questions that have become very relevant ever since 9/11 and the debates about presidential power under both Bush and Obama. He shows how these questions have been relevant for many decades and have been debated vigorously, with excellent arguments on all sides. He covers Lincoln’s calling up of the militia and expansion of the army as well as his blockade of southern ports. In all of these, his actions were ratified by Congress, so he was on good constitutional ground. As for the suspension of the writ of habeas corpus and the use of military courts, he was on much shakier ground. His administration probably went too far with military courts and intrusion on individual rights in areas outside the theater of war. But for the most part, his actions were defensible.
Given the grave danger that the nation faced, Lincoln took bold action. But overall, his actions were much more measured than we may realize. Most of his conduct was constitutional, even considered under later constitutional doctrines. The unconstitutional acts we must use not as precedent but as lessons. In large part, we have.
Farber’s last conclusion is the most important: “In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This is as much true of generals and justices as it is of presidents. We had best take care that, like Lincoln, they are worthy of our trust.”
The first half of the book addresses the secession crisis and the arguments that swirled around it. For example, what is sovereignty, and who possessed it? Who had it before the Constitution? The states? The nation? The people? Was there even a nation before the Constitution? Once the Constitution was ratified, what sovereignty was entrusted to which governments, or which people? Did the Constitution establish a perpetual union, or could the states secede? If so, who decides? Can the states leave unilaterally, or do all the states in the Union, like the parties to a contract, have to agree? And if secession was illegal, was it legitimate to use force to stop it? Buchanan thought not, but Lincoln disagreed. As Farber points out, a lot of these questions are like the old question of whether Lady Macbeth had children – the text doesn’t answer, but there is a lot of interesting historical and legal evidence to support the different positions. Farber does a wonderful job of explaining all the different arguments and evaluating them. I agree with his assessment that Lincoln had the better argument on these points, but there is a lot in these arguments that is still current, as he shows in his discussion of more recent Supreme Court cases about state vs. federal power.
The second half of the book covers more familiar territory – executive power and individual rights. In these chapters, Farber explores these questions that have become very relevant ever since 9/11 and the debates about presidential power under both Bush and Obama. He shows how these questions have been relevant for many decades and have been debated vigorously, with excellent arguments on all sides. He covers Lincoln’s calling up of the militia and expansion of the army as well as his blockade of southern ports. In all of these, his actions were ratified by Congress, so he was on good constitutional ground. As for the suspension of the writ of habeas corpus and the use of military courts, he was on much shakier ground. His administration probably went too far with military courts and intrusion on individual rights in areas outside the theater of war. But for the most part, his actions were defensible.
Given the grave danger that the nation faced, Lincoln took bold action. But overall, his actions were much more measured than we may realize. Most of his conduct was constitutional, even considered under later constitutional doctrines. The unconstitutional acts we must use not as precedent but as lessons. In large part, we have.
Farber’s last conclusion is the most important: “In the end, all power can be abused, so we must take the risk of putting confidence in those who exercise power. This is as much true of generals and justices as it is of presidents. We had best take care that, like Lincoln, they are worthy of our trust.”
April 3, 2015
A book about the constitutional issues that President Lincoln faced during his term in office, in light of current Constitutional theory.
Overall, I found that the author went to great lengths to be consistent with the hero mystique that has grown around Abraham Lincoln. Certainly the constitutional interpretations he proposes are plausible. But there are other plausible interpretations which he dismisses far too easily in order to paint the actions of President Lincoln in the best light possible.
For the most part, the author ends up justifying most of the actions of President Lincoln, especially in the American South, using the formalism of necessity in a war zone, and thus yielding all constitutional authority to the rules of war. In this interpretation, the necessities of war trump every other constitutional consideration. Thus, if this constitutional interpretation is correct (and modern interpretation seems to so accept it), the constitutional order is no more than a thin veneer that when the rubber meets the road is no more than a disguise for "might makes right". Indeed, the only objection to this conclusion is that events must be grave enough to be characterized as an emergency to public order and safety.
Still, a good book with which to judge the actions of President Lincoln in light of the Constitution as currently understood. It is not the fault of the author if the constitution is weak in the face of emergencies.
Overall, I found that the author went to great lengths to be consistent with the hero mystique that has grown around Abraham Lincoln. Certainly the constitutional interpretations he proposes are plausible. But there are other plausible interpretations which he dismisses far too easily in order to paint the actions of President Lincoln in the best light possible.
For the most part, the author ends up justifying most of the actions of President Lincoln, especially in the American South, using the formalism of necessity in a war zone, and thus yielding all constitutional authority to the rules of war. In this interpretation, the necessities of war trump every other constitutional consideration. Thus, if this constitutional interpretation is correct (and modern interpretation seems to so accept it), the constitutional order is no more than a thin veneer that when the rubber meets the road is no more than a disguise for "might makes right". Indeed, the only objection to this conclusion is that events must be grave enough to be characterized as an emergency to public order and safety.
Still, a good book with which to judge the actions of President Lincoln in light of the Constitution as currently understood. It is not the fault of the author if the constitution is weak in the face of emergencies.
August 14, 2022
Interesting and well done book covering several legal areas that arose before and during the Civil War. Covers, at a high level, whether the ratification of the US Constitution constitute consent of equal sovereigns, a compact, or whether it was ascent to form a higher level Union; the nullification crisis; ability to coerce states to comply with commands of the federal government; whether a state had the unilateral right to exit the union and presidential power and individual rights in war time. The author, when he can, tries to provide what the framers would have understood what the Constitution and underlying legal theory would have required, but in many cases, the author applies how the Supreme Court ultimately interpreted presidential war powers in subsequent 20th century cases. Real fascinating book that covers a broad range of topics ultimately integral to the form of the US government.
August 5, 2009
Professor Farber systematically analyzes constitutional issues of Lincoln's presidency and the Civil War. His primary focus is on whether secession was constitutional, whether Lincoln's decision to go to war without Congressional approval was constitutional and whether the suspension of habeas corpus was constitutional. Two of those questions have import for Americans today.
The author is a law professor, but the work is not intended only for the legal community. Farber's knowledge of Lincoln and his times shines as he frames the constitutional questions and analysis with the history of the time. Further, he considers the development of constitutional theory as he compares Lincoln's actions to those of subsequent presidents in times of crisis.
Anyone interested in Lincoln, the Civil War or history of the constitution will appreciate this book.
The author is a law professor, but the work is not intended only for the legal community. Farber's knowledge of Lincoln and his times shines as he frames the constitutional questions and analysis with the history of the time. Further, he considers the development of constitutional theory as he compares Lincoln's actions to those of subsequent presidents in times of crisis.
Anyone interested in Lincoln, the Civil War or history of the constitution will appreciate this book.
November 12, 2018
Daniel Farber's Lincoln's Constitution is both informative and insightful. The book wrestles with the constitutional issues raised by secession and the Civil War. Although Mr. Farber is conclusive in his statements (e.g., the Constitution does not allow secession), he seeks to be objective in analyzing and presenting the view points that existed at the time (such as John C. Calhoun's position that secession was constitutional). In grappling with these constitutional issues, the reader also develops a greater appreciation for Mr. Lincoln, who was somewhat of a paradox with respect to the Constitution - he both championed the rule of law and fidelity to the Constitution while also using executive power in a manner that tested the limits of the Constitution.
August 3, 2010
Excellent and thoroughly researched review of the issues surrounding Lincoln's presidency, specifically how the Constitutionality of his decisions could be viewed during and since his time in office. Farber clearly understands his topic, providing both ample detail and excellent additional references to both primary and secondary sources. Finally, he makes this potentially very dry subject palatable through clear and concise prose.
September 11, 2016
I had mixed feelings about this book as I read it - the style was a bit "off" & informal, it had a bit of a "college thesis" feel to it in some of its structure, and the author had some odd analogies (not bad one's mind you, but it is not oft that Lady MacBeth's state of childness/less comes up when comparing the legality of Southern secession). In the end, though, this book is deeper than I had time for - in a good way. This is book that is both dense and easily accessible. The author discusses the constitutional issues of Confederate secession (which means delving into the foundations of the document and the nature of sovereignty), and Lincoln's actions during the War (expanding the Army, suspending habeas, military trials, etc). These discussions involve going into aspects of contract law, the separation of branches, what wartime means to the Constitution, etc. Any interested in law, the Constitution, or Lincoln/Civil War, this is a must-read. I look forward to re-reading it when I have an excuse to "play" around with the concepts a bit more.
January 11, 2011
Abraham Lincoln's struggle with the struggle with constitutional that were brought about by the civil war and the cession of the southern states. touches all sorts of issues on civil rights, states rights, civil liberties and presidential power and National security. The point is a lot of the decision that were made during this time period still have significant and profound effects on how we view and interpret the constitution today.
October 25, 2008
A bit too sympathetic of Lincoln's scumbaggery, but a good legal discussion of States' Sovereignty, Secession, Martial Law, and the suspension of Habeas Corpus.
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