Saving the Constitution: Lincoln, Secession, and the Price of Union

33 Pages Posted: 27 Apr 2016

See all articles by Craig S. Lerner

Craig S. Lerner

George Mason University - Antonin Scalia Law School, Faculty

Date Written: May 2004

Abstract

Daniel Farber’s Lincoln’s Constitution is framed around two broad issues: First, did the South have the right--either under the Constitution or some higher law--to secede; or, as Lincoln argued, is “perpetuity . . . implied . . . in the fundamental law of all national governments”? Second, were Lincoln's actions to preserve the Union consistent with the Constitution; or did he exceed the powers delegated to him as the chief executive?

Farber in large part defends Lincoln’s acts as President. He writes, “It was Lincoln's character--his ability, judgment, courage, and humanity--that brought the Union through the war with the Constitution intact.” But this assumes that Lincoln saved the Constitution, rather than destroyed it. If the Constitution was originally a voluntary association of separate sovereigns, then he illegally engrossed the nation in a war that claimed over six hundred thousand lives. We may add violations of civil liberties to his sins, although at that point it would be hard to plunge his reputation any farther into disgrace. On the other hand, if Lincoln was right that the Constitution foreclosed secession and authorized the use of force to suppress any such movement, the entire problem of civil liberties needs to be re-gauged.

The Review concludes that the Founders did not regard secession as a constitutional right, but also that they could not have imagined that the federal government under the Constitution they had created would be so strong and so motivated as to prevent one-third of the states from withdrawing and reconstituting a government. Lincoln himself anticipated that a Union victory in the Civil War would give rise to a “new birth of freedom,” and he essentially cast himself in the role of a founder. The principles on which the Lincolnian regime were to be founded were not identical to those of the original regime, for most importantly the scourge of slavery would be eliminated. In this respect, as well as in laying the framework for a decisive shift in the relative power of the state and Federal Governments, it is perhaps not quite correct to say, as Farber does, that Lincoln “saved” the Constitution: he transformed it.

Keywords: abolitionism, Abraham Lincoln, Charleston, Civil War, Congress, Constitution, convention, Daniel Farber, Democratic, dissolution, Dred Scott, Fugitive Slave Act, Henry Lloyd Garrison, John Breckenridge, nomination, north, president, secession, slavery, slaveholders, south, Stephen Douglas, union

JEL Classification: A13, A14, K1

Suggested Citation

Lerner, Craig S., Saving the Constitution: Lincoln, Secession, and the Price of Union (May 2004). Michigan Law Review, Vol. 102, No. 6, pp. 1263-1294, 2004, George Mason Legal Studies Research Paper No. LS 16-15, Available at SSRN: https://ssrn.com/abstract=2756209

Craig S. Lerner (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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