Lincoln and the Court

Reviewed by Timothy Sandefur

By Brian McGinty
Harvard University Press, 375 pages,
$27.95, hardcover

The unusual nature of the war on terror has inspired several books on the analogous legal issues that arose during the American Civil War. Daniel Farber's Lincoln's Constitution was the first--and is still the best--discussing in precise and convincing detail the legality of secession, Lincoln's suspension of habeas corpus, the silencing of political opponents, and many other controversies. It was followed by James F. Simon's Lincoln and Chief Justice Taney; William Lee Miller's President Lincoln: The Duty of a Statesman; and now Brian McGinty's smoothly written overview of both the Lincoln administration's legal position and its troubled relationship with the Supreme Court as an institution.

These books help us understand today's wartime policies in many ways. The Civil War, like the war on terror, was prosecuted against an entity the administration did not acknowledge as a legitimate state. So arguments over whether the present conflict qualifies as a "real" war must begin with the Prize Cases, in which the Court found that the lack of a formal declaration of war did not mean the Civil War was anything less than a constitutionally authorized war. Similarly, Lincoln's lieutenants tried both combatants and civilians in military tribunals rather than in civil courts; thus the Hamdan and Hamdi decisions, addressing the constitutionality of military trials at Guantanamo Bay, included discussions of Ex Parte Yerger and Ex Parte McCardle, which analyzed the legitimacy of similar methods used a century and a half ago.

A successful and intelligent lawyer, Lincoln often crafted powerful legal arguments for his policies. His Cooper Union Speech in 1860, which made him a serious presidential candidate, was basically a brief against the Southern position that the Constitution barred Congress from restricting slavery in the western territories. And his special message to Congress on July 4, 1861, was largely devoted to a sophisticated explanation of why the Constitution forbids any state from unilaterally leaving the union. As president, Lincoln was scrupulous about the constitutionality of his measures, although emergencies sometimes required him to act in the absence of precedent, or even on occasion to break the law--which Lincoln himself admitted.

Consider the Emancipation Proclamation. Lincoln, a lifelong opponent of slavery, nevertheless emphasized that the president had no power to interfere with slavery in states where it already existed. This was true: the Constitution, for better or worse, gave the president no such power. It was when wartime necessity put into motion his powers as commander in chief that Lincoln moved to abolish slavery as a military measure. This accounts for the Proclamation's bland verbiage: It was an order, not a political declaration or a law, and thus Lincoln "took pains," as McGinty writes, "to articulate his constitutional authority for issuing it--his own powers as commander in chief, and the military necessity posed by the Southern rebellion." Lincoln rightly concluded that talk of the rights of man would only have antagonized lukewarm supporters.

Likewise, although Lincoln unilaterally marshaled troops and suspended habeas corpus in Maryland, Congress ratified these steps when it reconvened. And he admitted that some violations of civil liberty were contrary to the law. He did not argue--as some successors have--that constitutional protections are simply suspended during wartime, or that the "wartime Constitution" somehow differs from the written document he was sworn to uphold.

McGinty describes all of these controversies in a readable style, adding intriguing personal details about the personalities who handled America's greatest constitutional crisis. Among the least sympathetic of these characters was the administration's leading critic, Chief Justice Roger Taney, an impassioned defender of slavery who violated his judicial duty of impartiality by preparing memos against Lincoln's policies that he could whip out when cases arose. In fact, Taney's rabid partisanship preceded the Lincoln years: While writing the Dred Scott decision in 1857, he refused to share drafts of the opinion with fellow justices, even though he demanded to see their dissents so he could rebut the points they raised. Justice Benjamin Curtis considered this act so unprofessional that he tendered his resignation. But Taney's behavior only worsened. In Ex Parte Merryman, Taney refused requests for extensions of time that would have allowed him to hear the administration's arguments, and then issued a ruling against Lincoln's suspension of habeas that made no mention of the riots and military maneuvers that led to the suspension. Taney, who had invested his savings in Virginia bonds, even refused to take the loyalty oath required in the antislavery constitution that Maryland drafted during the war. Little wonder that Charles Sumner, slavery's greatest enemy in the Senate, blocked Congress from appropriating money for a marble bust to memorialize the execrable chief justice. "The name of Taney is to be hooted down the page of history," Sumner declared. "Let a vacant space in our court-room testify to the justice of our Republic."

Unfortunately, the elegant detail of McGinty's book comes at the expense of legal analysis. Farber's book remains the best one on the substantive controversies of secession, civil liberties, and other issues central to the war. McGinty chronicles, but does not weigh, these disputes. Perhaps more disappointing is his failure to describe the longer-term effects of Lincoln's relationship with the Court. One exception is his dramatic account of the postwar Legal Tender Cases, in which a senescent Justice Grier wavered on the constitutionality of the paper money the Lincoln government issued. Grier's swing vote first led the Court to declare greenbacks unconstitutional and then to reverse itself almost immediately. Few cases have hurt the Court's reputation more. In fact, the decisions were partly responsible for the rise of a doctrine known as legal realism, which rejects the proposition that the Court is above politics. But McGinty only barely notes this effect, and his other observations on the ramifications of the Lincoln era are sometimes questionable.

For instance, while he declares that Samuel Miller was "arguably Lincoln's best appointment to the Court," he never develops that argument, and it is prima facie absurd. Lincoln's finest appointment was surely Stephen Field, the larger-than-life '49er who became the first Californian on the Supreme Court. Field, a pioneer of substantive due process theory and a staunch defender of the property rights and freedom of contract that were fundamental to the Gilded Age, had a bigger effect on the law than any justice until Oliver Wendell Holmes. Even today, Field's precedents remain among the most important in history. Miller, by contrast, helped unravel the Reconstruction Congress's efforts to protect individual rights in the South. His opinion in the Slaughterhouse Cases is almost universally regarded as a lasting wound to the Fourteenth Amendment.

Still, McGinty's book serves as an excellent introduction to the Court's most complicated era, a time when under the pressure of America's cruelest war mortal men applied timeless principles to cases that set the country's course for generations. That they managed to produce a fruitful body of decisions under those conditions is nothing short of amazing.

Timothy Sandefur is a senior staff attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006).

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