By Richard Carwardine

(London: Pearson Education Ltd, 2003), 352pp.

Lincoln's Constitution
By Daniel Farber
(Chicago: University of Chicago Press, 2003), 240pp.

London Review of Books, October 23, 2003

The United States suffers an unexpected attack. The president deploys the armed forces and assumes extraordinary powers that go well beyond what the Constitution seems to allow. Thousands of persons suspected of aiding the enemy are arrested and held without charge, or tried before military tribunals. Talk abounds of deporting members of a particular ethnic group from the country. The president meets frequently with evangelical ministers, trying to assure their active support for his politics. Leading members of the administration describe the military conflict as an epic struggle between good and evil, inspired by the country's divinely-appointed mission to spread freedom and democracy throughout the world.

The period is the 1860s, the president Abraham Lincoln, and the conflict the American Civil War. History never really repeats itself. But the uncanny resemblances between that era and events in the United States since September 11, 2001 have pushed to the forefront of historical discussion such questions as the status of individual rights in a national emergency, and the permissible limits on the rule of law in wartime.

Lincoln has always provided a lens through which Americans examine themselves. Every generation reinvents Lincoln in its own image. He has been variously described as a consummate moralist and a shrewd political operator, a lifelong foe of slavery and an inveterate racist. The most recent full-scale biography, by David Donald, published in 1996, offered a Lincoln buffeted by forces outside his control, a man of few deep convictions who failed to lead public opinion -- rather like Bill Clinton. Although originally conceived before September 11, the newest books on Lincoln have at least one eye on the present. Both try to offer a Lincoln for our times.

Richard Carwardine, who recently assumed the Rhodes Professorship of American History at Oxford, focuses on Lincoln's relationship to different kinds of power – political, military, and moral power, and the power of public opinion and religious enthusiasm in an overwhelmingly Protestant democracy. (Although feminists have demonstrated that issues of power also arise in intimate settings, this is very much a study of Lincoln as a public figure, with virtually nothing about his private life.) Carwardine's organizing theme appears to have been dictated by the title of the series, “Profiles in Power,” in which the book appears. But it works extremely well. The book offers an insightful, judicious, and in some ways original study of Lincoln's public career.

Where Carwardine breaks new ground is in his treatment of Lincoln's complicated relationship to evangelical Protestantism. Lincoln came of age during the Second Great Awakening, a prolonged series of religious revivals that reinvigorated and democratized American Christianity. Personally, he seems to have remained unaffected by the revivals. As a youth, he had a reputation as an “infidel,” who read Tom Paine's “The Age of Reason” and never became a church-goer. But he studied the Bible carefully, and Biblical language and cadences suffused his rhetoric.

What little Carwardine says about Lincoln's personal religious beliefs is, unavoidably, speculative. But he effectively demonstrates that Lincoln appreciated evangelicism's political significance. During the 1850s, Lincoln worked to mobilize the political activism of those Protestant believers who saw the Republican party, with its anti-slavery positions and thinly-veiled hostility to Catholic immigrants, as the “Christian party” in politics. As president, he met frequently at the White House with ministers and harnessed in the cause of Union patriotism their vision of the war as a divinely-ordained battle between national sin and national redemption.

Carwardine shows how Lincoln brilliantly fused appeals to Protestant millennialism and Enlightenment rationalism, to the Bible and the Declaration of Independence, in the service of the Union cause. During the war, he learned to use “cadres of mainstream Protestants” as his “ideological shock troops” in creating a powerful public sentiment supporting of the war effort. (Lincoln's success contrasts dramatically with the failure of his Confederate counterpart, Jefferson Davis, to mobilize southern public opinion effectively.)

Lincoln led a battle to preserve the Union that fueled an intense new nationalism, which, in turn, legitimized an unprecedented increase in the powers of the federal government. It is sometimes said that the American Civil War was part of a broader nineteenth-century process of nation-building. Lincoln has been called the American equivalent of his contemporaries Giuseppe Mazzini or Otto von Bismarck. But Lincoln's nation was different from those being constructed in Europe. They were based on the idea of unifying a single people with a common ethnic, cultural, and linguistic heritage. To Lincoln, the American nation represented not a particular Volk, but a set of universal ideals, centered on political democracy and human liberty. It represented a beacon of freedom in a world overrun with oppression.

Nonetheless, American nationalism has also had a strong ethnic or racial element, dating from the very first immigration law, of 1790, which barred non-whites from emigrating to the United States and becoming citizens. Lincoln himself revealed the tension between a rhetoric of universalism and the reality of racial proscription.

Hovering over Carwardine's book is the shadow of another recent study, Lerone Bennett's “Forced Into Greatness” (1999), a full-scale assault on Lincoln's reputation that presented him as a life-long racist. Bennett's prosecutorial brief was highly exaggerated, but he did offer compelling evidence of how historians have consistently downplayed Lincoln's commitment to “colonization” – the project of sending blacks from the United States to Africa or the Caribbean. This was no passing fancy: Lincoln mentioned the idea in numerous prewar speeches, a number of messages to Congress, and at a notorious meeting with black leaders at the White House in 1862, at which he urged them to encourage their people to emigrate.

Carwardine does not try to sugar-coat the fact that for nearly his entire career, Lincoln “refused to entertain political and social equality for blacks” -- to allow them to vote, hold office, or intermarry with whites. He also notes, correctly, that unlike his Democratic opponents, Lincoln never made crude political appeals to racism and insisted that, whatever their political status, blacks were entitled to share in the “unalienable rights” listed in the Declaration of Independence.

But Carwardine, like many previous scholars sympathetic to Lincoln, falls victim to what Bennett called the “fallacy of the isolated quotation.” He cites many of Lincoln's condemnations of the evils of slavery, but often fails to note that in the same speeches, Lincoln called for colonizing blacks outside the country (on at least one occasion using the ominous word “deportation”). He quotes Lincoln's dismissal of warnings that freed slaves would move North to compete for white jobs as “largely imaginary” but not his comment in the same December 1862 speech that the North could bar black migrants if it so desired. (Illinois, where Lincoln spent most of his adult life, made it illegal before the Civil War for any black person to enter the state.)

Nonetheless, Carwardine rightly identifies the capacity for growth as the hallmark of Lincoln's greatness. By the end of his life, Lincoln had abandoned the idea of colonization and embraced policies he initially opposed – emancipation, the enrollment of black soldiers in the Union army, the right to vote for at least some blacks. Carwardine is not entirely successful in explaining the transformation. He ignores how the actions of slaves who ran away from plantations in the first years of the Civil War, and the pressure for an attack on slavery by Radical Republicans, placed emancipation and black rights on the national agenda and forced a reluctant Lincoln administration to begin devising policies on these issues. He notes that Lincoln never strayed too far from the mainstream of northern public opinion, but the reader is left wondering whether Lincoln guided or was guided by changing public sentiment regarding slavery and race.

Needless to say, Lincoln's vision of the United States as the “last best hope” of mankind remains very much alive today. So does its corollary – a willingness to flout the rules of national and international law when the country's interests seem to require, and the widespread equation of criticism of an American administration with treason to the nation and to the idea of freedom. “Lincoln's Constitution,” by Daniel Farber, a Professor of Law at Berkeley, examines the legal issues arising from Lincoln's efforts to suppress the South's secession. The book tackles large questions: did the South have a right to secede, did Lincoln trample on civil liberties? Largely because he shares Lincoln's belief in American exceptionalism, Farber comes down on Lincoln's side in almost every case.

Farber makes a strong argument for Lincoln's position that the founding fathers did not contemplate the right of a state or group of states to secede, and that the Constitution empowers the president to suppress any effort to break up the Union. Nonetheless, he admits that secession poses “a difficult problem for democratic theorists,” in that government is supposed to rest on the consent of the governed. Is there no way for part of a people to withdraw its consent – as the signers of the Declaration of Independence did in 1776?

Today, this is a moot point in the United States. No one is threatening to secede (although residents of New York City are sometimes sorely tempted). But internationally, the question is very much alive. We have lived through a period in which established nation states disappeared and new ones suddenly emerged. Would the Soviet Union or Czechoslovakia have been justified in using force to prevent their own dissolution? Will Canada, if the people of Quebec one day vote in favor of independence?

Farber insists that the existence of slavery undercut the moral legitimacy of the white South's claim to self-determination. Fair enough – except that the same could be said of the American revolutionaries of 1776, most of whom were slaveholders. In the end, Farber's discussion of secession reveals the enduring power of Lincoln's idea that the United States is not like other nation states. It embodies a world-historical mission, and the South's triumph would not simply have redrawn the world's political boundaries, but dealt a severe setback to the ideals of democracy and freedom.

The irony, of course, is that administrations whose rhetoric equate the interests of the United States with the fate of freedom themselves frequently limit freedoms at home. The Civil War was no exception. Lincoln was not a dictator. Elections occurred on schedule throughout the war, and the Democratic press continued to flourish. Restrictions on civil liberties in no way matched the massive repression during World War I. But during the Civil War an estimated 13,000 civilians were held under military arrest. Most were persons suspected of dodging or otherwise interfering with conscription, or of actively trying to aid the Confederacy. But many were jailed for criticism of administration policies, or even off-hand remarks disrespectful of the president. Lincoln suspended the writ of habeas corpus several times (even though the Constitution appears to reserve the right to do so to Congress, not the president) and ignored court orders with which he disagreed.

Farber generally approves of Lincoln's actions. Rights were violated, but not, he insists, “on a massive scale.” He attributes excesses to military subordinates and insists that the Constitution is “ambiguous” about presidential powers during wartime. In the end, his argument is often pragmatic rather than constitutional, based on the need for vigorous action to defend the integrity of the Union.

Unfortunately, Farber fails to address the question most likely to be of interest to today's reader: did the violations of civil liberties make any difference to the war's outcome? History suggests that they did not. It is hard to believe that the Union would have lost the war if “disloyal” civilians had been told the charges against them and tried before civilian courts. Similarly, there is no evidence that the repression of freedom of speech during World War I aided Allied victory, that Japanese-American internment had any effect on the outcome of World War II, or that the arrest of thousands of persons of Middle Eastern origin without charge, the establishment of military tribunals, and the vast expansion of government surveillance of ordinary citizens since September 11 has made any real contribution to the “war on terrorism.” It is entirely possible to maintain the rule of law while fighting a war.

Farber ends his book with a four-page afterword, “The Lessons of History,” ruminating on what lessons, if any, we should learn from the fate of civil liberties during the Civil War. Readers will probably find this discussion both spare and inconclusive. Farber seems worried that his audience will take his defense of Lincoln's actions as a justification for President Bush's recent violations of civil liberties. He warns that the Civil War experience does not provide a “general warrant” for abandoning constitutional protections in times of crisis. Rather, he argues, Lincoln's career reveals the central role of “character” on the part of the president, since he kept violations to a minimum. But reliance on the president's character is an odd stance from a professor of legal history. The point, one would think, is to have a government of laws, not men, one dependent on widely-recognized principles of governmental conduct, not the personal qualities of the individual who happens to occupy the White House.

The importance of character may not be the most important “lesson” to be drawn from the history of civil liberties during the Civil War and in the last two years. Both offer proof of the fragility of civil liberties in the face of assertive patriotism and wartime demands for national unity. At a time when it has become a cliché among the political punditry that we are witnessing a struggle between Islamic civilization (violent, intolerant, anti-libertarian) and Western civilization (liberal, tolerant, devoted to freedom), these histories draw our attention to the fact that strong protections for civil liberties are not an inherent, timeless feature of American culture.

Well into the twentieth century, the social and legal defenses of free expression and individual liberties were extremely fragile. Labor activists, socialists, advocates of birth control, campaigners for racial equality, and others faced numerous legal and extra-legal obstacles to their ability to publicize their views, hold meetings, picket, and distribute literature. Time and again, moreover, the courts acceded to violations of civil liberties during wartime.

Not until the 1960s did the modern jurisprudence of civil liberties become fixed in law. It took as long for the legal foundations of equality before the law for all Americans regardless of race and ethnicity to gain constitutional and judicial protection. These liberties and rights remain neither self-enforcing nor self-correcting. As the past two years have shown, large numbers of Americans (like citizens of other countries) are willing, when hurt, frightened, and feeling vulnerable, to countenance significant violations of civil liberties and of the principle of equal protection of the laws, especially when they seem to apply to one ethnically-specific segment of the population.

Today, we are constantly reminded that the United States is a special nation, chosen by God to instruct the rest of the world in the meaning of liberty. The language would have been familiar to Lincoln's generation. Despite his cooperation with the religious “shock troops” of northern patriotism, however, Lincoln never quite succumbed to the idea that he, or the nation, embodied God's will. Lincoln's fullest statement on this question came in his second inaugural address of March 1865, widely considered his greatest speech. How easy it would have been, with northern victory imminent, to view the outcome as the will of God, and to blame the war on the sins of the Confederacy, paramount among them slavery.

But Lincoln's invocation of religion was self-deprecating, not self-justifying. Both sides, he pointed out, believed they were fighting with divine support. No person, he insisted, truly knows God's intentions. Some listeners objected to his comments. “Men are not flattered,” Lincoln remarked to a colleague after the speech, “by being shown that there is difference of purpose between the Almighty and them.” As Carwardine points out, Lincoln “showed much more humility than did most Protestant preachers.” And, one might add, most current American political leaders.

We have progressed a great deal since 1865. Today's politicians have a direct pipeline to the divine. Lincoln may not have known God's will, but George W. Bush is certain that he does. Humility is a most appealing quality in a powerful political leader; hubris perhaps the least attractive. It is worth remembering Lincoln's great “lyceum” speech, delivered in 1838 when he was just starting out in Illinois politics. Shocked by mob attacks on abolitionists, Lincoln pleaded for respect for the rule of law. The real danger to American liberty, Lincoln warned, lay not overseas, but at home: “if destruction be our lot, we must ourselves be its author and finisher.”

Eric Foner is DeWitt Clinton Professor of History at Columbia University. On 5 November, he will lecture on “Abraham Lincoln: The Great Emancipator?” at the British Academy in London.