Lincoln's Constitution

After re-reading his book on the Ninth Amendment, I checked out this book from the library. Like the Ninth Amendment book, it is basically for the average reader, not just someone specifically interested in the topic and/or a specialist. The book he co-wrote entitled Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations is more of that sort though you do not really have to be a law student to appreciate it. 

The title of this book is something of a misnomer.  It really focuses on the Civil War, with an extended prelude about antebellum ideas about state sovereignty.  A late comment about "if" he was saying he "would sign legislation banning slavery in the territories" also ignores that he actually did that.  One thing that could have been covered more in a more open-ended discussion was something like the rights of blacks. Lincoln said they had basic rights, as spelled out in the Declaration of Independence, without being equal in all respects as whites.  This is the middle path between the "no rights" of Taney and the "firmly equal rights" of radicals. 

(The book at one point notes the debates over sovereignty had a certain metaphysical feel to them.  Yes.  This talk of "dignity" of states and so on at some point becomes ridiculous, except we are talking serious results.) 

Focusing on the more narrow range of the book, it has some interesting aspects.  It also overall thinks Lincoln's moves were defensible, which I think is true as a whole as well.  Some, including those who toss it out to grant something to focus on something else like the idea Lincoln in general was lawless, blithely exaggerate how bad the wartime policies were.  A basic example is in the area of free expression, in an age before modern day law much more strongly protected that. 

The book also tosses in some interesting details such as the fact a federal circuit judge held that the statutes that empowered Lincoln to call up the militia implicitly also authorized him to declare martial law/suspend habeas.  This makes the whole Merryman argument somewhat moot.  Books that cover familiar ground often have some such useful details. On that note, Farber cites the possibility Taney did not have jurisdiction (which would allowed Lincoln to ignore his ruling) but did not cover the details. I recall a discussion that touches upon just such an issue.  

One basic thing covered was the "law of necessity." The line about following one law while ignoring the rest is cited sometimes.  This is done badly a lot of times too.  One aspect of Lincoln's argument (and he said much of what he did was legal anyways) is that the situation when the Civil War began was such that he in effect had a dilemma.  He could not truly faithless execute all the laws.  It was basically a "least bad option" scenario that is covered here in regard to the debt ceiling.

Also, the law of necessity is part of our system of law. It is not an "anything goes" scenario.  There is regularly some third party (there Congress and the people at the polls, other times a judge and/or prosecutor) who has to look at the situation.  They have to judge if the person truly had such an extreme situation that the law being broken was warranted. Sometimes, this serves as mere mitigation.  It is a complex thing.

The last chapter also covers the "limits of judicial authority" and the terms of so-called judicial supremacy.  Lincoln eventually came to a position where constitutional law as expressed by the Supreme Court comes into a firm footing over time.  A single ruling (Dred Scott) would not do so, especially if there is clear issues with it.  On the other hand, shades of James Madison statement on the national bank in his veto message, the law at some point becomes so established that it deserves deep respect.

The chapter cites Jefferson's "departmentalism" view that each branch of government has the power to settle constitutional questions.  So, even if the Supreme Court determines the national bank is constitutional, maybe Congress or the president will decide otherwise.  A more tricky issue here would be when the Supreme Court decides a question regarding rights and an executive official has to decide the same question. What if the result restrains rights in a way the courts find incorrect? 

The lest we be marshall'd book (recently referenced) covered Jefferson's views in somewhat more detail, noting that they were not fixed, and avoided the settlement of hard questions.  Jefferson was known to be more of an idea man. This book, for instance, noted that Madison talked him into toning down his rhetoric in his part in the Virginia (Madison) and Kentucky (Jefferson) Resolutions.  

The judiciary is supposedly particularly able to decide legal matters. They are after all judges, learned in the study of law.  They hear specific cases, able to examine specific legal matters in detail.  They are also protected from partisan pressures, their salary and terms protected.  They have an ability to stand above it all and protect the law, especially minorities.

All of these things are, surely, disputed in various ways.  As I said before, the best approach is to support a more humble version of judicial review.  Lincoln's pushback on Dred Scott is a good example.  Precedent can be bad regardless. But, recent precedent, especially one that is decided in a problematic way, are even more worthy of pushback.

The idea referenced in Cooper v. Aaron, which as I noted is far from a typical case, that the Supreme Court (and on some level all courts) are "supreme in the exposition" of the law can be abused.  If the Biden Administration wants to decide that the federal Constitution protects a right to choose an abortion, it very well can.  At some point, this will clash with Dobbs v. Jackson if it "wrongly" interferes with state power to regulate, but there is a lot of room before that happens. 

I recently wrote a supposed oral argument for Marbury v. Madison, which (unlike the original) included both sides arguing.  A relative uses such "oral arguments" as part of her sale of education materials (she is a high school history teacher).  A thing I flagged was that each branch has certain skills and duties.  They each swear/affirm to uphold the Constitution.  If anything, it is the POTUS that the Constitution gives the strongest oath there.  They all can have a role in exposition.  

The ultimate question then is who is "supreme."  As noted in the book, and by Jefferson (fwiw), each will be in certain respects.  For instance, Congress (so says the Supreme Court) has open-ended ability to determine the contours of impeachment, even though the language is legal in nature.  (Some extreme case like allowing a majority to convict aside.)   Presidents veto bills and can do for misguided "constitutionality" reasons.  And, each branch does a lot of things realistically, in part because of existing judicial rules, that simply will not be put to the legal test.  

There is a lot of play in the joints. There will be cases where a clash might arise.  And, even there, I think it is sound practice to reasonably have some clashes, especially when the legal limits are unclear and dubious.  The fact something in 1987 or something, for instance, held one thing does not mean that signing something into wrong clashing with it is horrible.

Each department, including the courts, have a duty to be reasonable here. And, when special moments, like the Civil War, arise, tricky choices have to be made.  This book helps educate yourself on such matters.