Some more pro-reviews of the work.
famous historian visited my undergraduate university half a century ago and announced that, except for a minor item or two such as a history of the quartermaster corps, the major work on the Civil War was completed. Since then several significant books have been published. Daniel Farber's Lincoln's Constitution is one of them.
Reviewed by: Donald K. Pickens, Department of History, University of North Texas.
Published by: H-USA (December, 2003)
http://www.h-net.msu.edu/reviews/showrev.cgi?path=103401078008870
Farber's Lincoln's Constitution deserves a place in this roster of important legal-constitutional history titles. Farber both restates the complex issues facing the bifurcating Union, 1861–65, and connects some, including federalism, judicial review, and presidents' crisis powers, to their prewar evolutions, wartime uses, and post-9/11 reappearances, thereby offering readers many useful insights. For example, he concludes correctly that "In practical terms ... the key issue [in the southern states' decisions for secession] was not sovereignty but power" (44).
Harold M. Hyman
Rice University
http://www.historycooperative.org/journals/lhr/22.3/br_10.html
Farber glimpses this fact in his conclusion, which emphasizes Lincoln's personal qualities. He writes, "It was Lincoln's character -his ability, judgment, courage, and humanity - that brought the Union through the war with the Constitution intact" (p. 200). Of course, 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 and destroyed the economy of much of the nation. 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. As Richard Posner writes, "If the Constitution is not to be treated as a suicide pact, why should military exigencies not influence the scope of the constitutional rights that the Supreme Court has manufactured from the Constitution's vague provisions?"110 My own view is that the founders did not think secession was a constitutional right, but also 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.111 I thus think it fair to say that Lincoln, through the Civil War, effected a shift in the nature of the regime. Lincoln himself anticipated that a Union victory in the Civil War would give rise to a "new birth of freedom,"112 and he essentially cast himself in the role of a founder. The principles on which the Lincolnian regime were to be founded were not quite 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. - Craig Lerner, Michigan Law Review, May 2004
In short, Farber missed the point entirely. And there are others...
But before the war came, Lincoln was most closely associated with the moderate anti-slavery position that the states could permit or forbid slavery as they saw fit, but that Congress had plenary power to exclude slavery in federal territories-the latter being the very position that the Supreme Court declared unconstitutional in Dred Scott. The Court's decision was wrong, horribly wrong, and seemingly deliberately wrong. The Court's decision crushed Lincoln's faith in the judiciary as an impartial instrument of constitutional interpretation, and led him by degrees ultimately to a very narrow, case-specific conception of judicial authority, and to a very strongly "departmentalist" view of constitutional-interpretive power generally, under which the notion of judicial supremacy over the political branches in constitutional interpretation became tantamount, in Lincoln's eyes, to resignation of popular government and violation of the executive's sworn duty to preserve, protect, and defend the Constitution of the United States.10 These are huge themes-with huge consequences for the other issues Farber discusses (as I will develop below). But they are, in the main, ignored in Lincoln's Constitution. In addition to the slighting of slavery and Dred Scott (and the specific substantive issues I address below), I have two other minor quibbles with Farber's presentation. First, there are too many distracting side excursions into modern Supreme Court cases that relate only indirectly to Civil War-era themes. U.S. Term Limits, Inc v Thornton11 (pp 27-28, 30, 33, 38, 79-80), Alden v Maine12 (p 28), New York v United States13 (pp 95-96), and Printz v United States14 (p 96) are interesting recent cases, presenting important issues of federalism and sovereignty-themes at the crux of the Civil War. But the issues presented by 1990s cases involving sovereign immunity from damages suits and intergovernmental immunity are a far cry from secession and civil war. Farber's subtle attempts to tar conservative Rehnquist Court decisions with the brush of neo-Calhounism, while not utterly implausible, are a bit strained. Mostly, though, they just feel out of place-anachronistic-and detract from the narrative. Attempts to extract specific lessons for today's marginal federalism controversies from the great convulsions of interposition, nullification, secession, and civil war have their limits. Some readers, perhaps, may cheer Farber for making Civil War-era issues "come alive" for today's controversies. Others will (like me) find Civil War issues lively enough on their own, and will find Farber's modern-day morals-of-the-story dull, and forced, by comparison.15 Similarly, Farber's inclination to evaluate the constitutional propriety of Lincoln's actions through the lens of Supreme Court decisions rendered a hundred years later-as he does, for example, with issues of separation of powers and executive power, invoking the three-category paradigm of Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube Co v Sawyer16 (pp 120, 130-32, 156), and with respect to the First Amendment freedom of speech in time of war, invoking Brandenburg v Ohio17 (p 172)-feels very much like modern, court-centric anachronism. Farber acknowledges the problem of anachronism, but nonetheless seems bound by modern judicial paradigms and doctrinal tests. - Michael Paulsen, University of Chicago Law Review, May 2004.
...and that from a review that also claimed, like Gutzman, that the book was "interesting."