Constitutionalism and the Limits of Character

Abstract

Daniel Farber, Lincoln's Constitution. Chicago: University of Chicago Press, 2003. Pp. 256. $27.50. At a moment in our history when thoughtful people in both blue and red states consider it a crisis that a deeply conservative President of the United States, buttressed by a small majority triumph at the polls, may have the opportunity to appoint three or four new justices to the Supreme Court and dozens more to the lower federal courts, a close examination of Abraham Lincoln's constitutional views during the Civil War is timely. Daniel Farber, a professor of law at the Universities of Minnesota and California at Berkeley, claims such timeliness because, he writes, "we can use Lincoln as a test of modern constitutional doctrine, and use modem doctrine as a medium for assessing Lincoln's actions." Farber is very much interested in placing legal analysis in historical context, but he is equally concerned with the present. His questions and assumptions, indeed his very motivation in examining Lincoln's constitutional performance, stem from concern about the current revival of state rights doctrine on the Supreme Court. "Secession is dead," declares Farber, "but not the dispute over state sovereignty." In this insightful and well-crafted mixture of past and present, we get not only a careful look at Lincoln's legal actions in the ultimate national test, but also a sustained argument that we are in danger of a true take-over by latter day proponents of a brand of federalism that would return as much power as possible to the states. The real target of this work of legal scholarship is the state rights coalition on the Supreme Court, led, in Farber's view, by Clarence Thomas. Thomas, according to Farber, represents a constitutional interpretation not far distant from John C. Calhoun and Jefferson Davis. Absent slavery and any hint of racial equality, Farber sees little difference between Thomas - or, fact that matter, his mentor, Antonin Scalia - and the Old South's principal intellectual and political leaders.