Abstract
Lincoln's Constitution, Daniel Farber. Chicago, 2003. Pp ix, 240. I. The Commander-in-Chief of a War over Constitutional Meaning The world will little note, nor long remember, what academics say about the Constitution. That is, probably, as it should be. The law is made--its interpretation settled--by great events, not law review articles; by wars, not words; by presidents, not professors. The Constitution we have today is in substantial measure the result of the single most decisive legal interpretive event of American history: the Civil War. The outcome of Grant v Lee resolved the most important issue of antebellum constitutional dispute--the nature of the Union--in favor of the nationalist view of sovereignty and against the South's state-sovereignty view. It was a great Civil War, not a judicial opinion, that settled this issue. It was likewise the Civil War, not any correcting judicial decision, that reversed the most egregious error of the Supreme Court up to that point in our history--Dred Scott's 1 enshrinement of slavery as a fundamental constitutional property right of (white) citizens, immune from federal interference as a matter of "due process" of law. And it was the War, not any judicial decision, that reversed the most egregious error of the framers in preserving and protecting slavery (to a considerable degree) in the first place. The War worked a fundamental transformation in the legal status of slavery under the U.S. Constitution, and it defined (some would say redefined) American federalism. It did so by repudiating ...