New Reflections on Lincoln and the Constitution during the Civil War

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The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus. By Brian McGinty. (Cambridge, MA: Harvard University Press, 2011. Pp. 253, notes, bibliography, index. Cloth, $29.95.)

Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War. By Mark E. Neely Jr. (Chapel Hill: University of North Carolina Press, 2011. Pp. 408, notes, bibliography, index. Cloth, $35.00.)

Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman. By Jonathan White. (Baton Rouge: Louisiana State University Press, 2011. Pp. xii, 191, illustrations, notes, bibliography, index. Paperback, $17.95.)

Recently, because of my interest in the life, work, and politics of Joseph Holt - Abraham Lincoln's judge advocate general, head of the War Department's Bureau of Military Justice, and a crucial supporter of Lincoln's wartime policies following his appointment in September 1862 - I was invited to speak at a conference in Clinton, Maryland. During one of our breaks, a fellow speaker took pains to express to me his opinion about Lincoln's suspension of the writ of habeas corpus. An unprecedented "power grab," he called it, shaking his head, and an unconscionable, unAmerican violation of civilians' constitutional civil rights in wartime. My interlocutor went on to describe his own current research, which, he warned, would cast a number of presidents (including Lincoln) and their administrations' "enforcers" (such as Holt) in a severely unfavorable light. I am no stranger to this sort of exchange, having come to be known over the last decade or so, with varying degrees of affection, approval, curiosity, and disdain, as "the Holt lady." On this occasion, in response to my colleague's warning, I asked whether he had read the recent and extremely relevant books by Mark E. Neely Jr., Brian McGinty, and Jonathan W. White. When he informed me that he had not, I urged him to do so in the near future, at the very least, before he set into permanent print his opinions on President Lincoln, Chief Justice Roger B. Taney, habeas corpus, the Constitution, and wartime civil liberties. I made this recommendation energetically not just because I believe these books were worth his time, but also because they are important resources for Civil War scholars generally. Each of the three is illuminating in its own way.

The longest and most sweeping of the trio is Pulitzer Prize-winner Mark Neeh/s Lincoln and the Triumph of the Nation. In this book, Neely seeks to redress the previous absence in the literature of a single volume dealing simultaneously with the wartime history of the U.S. Constitution, which he describes as "an underestimated asset to the Union cause," and the Confederate Constitution, which he insists was "by no means... a cause of Confederate defeat." (pp. 15-16) "Since the constitutions were markedly similar in content," Neely explains, "the historian has the opportunity to see the document itself tested in two different societies at the same time." (p. 17) This, then, is precisely what Neely sets out to do: to explore "how lawyers, judges, justices, and government officials" in both the Union and the Confederacy "thought about the Constitution," (p. 25) and to examine the arguments they made with respect to which government policies during the war were "constitutional" and which were not. From the start, Neely informs readers that rather than a sharply defined thesis on the constitutional history of the Civil War, his goal is to present us with the "several arguments" (p. 17) and an abundance of opinions expressed by the period's "judges, newspapers editors, politicians, and political pamphleteers." (p. 26) In doing so, he hopes that Lincoln and the Triumph of the Nation can become a springboard for future studies of the Constitution in the Civil War and in other American wars. Neely would be pleased indeed if his thought-provoking book were to "launch a new series of titles, beginning with 'Constitutional Problems Under Madison' and stretching through all our wars until we have accumulated a shelf of volumes that reconsider the role of the Constitution in America's wars. …