Parlous Times

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Reviewed by Charles Lane
Sunday, February 17, 2008


By Brian McGinty

Harvard Univ.

375 pp. $27.95

The Supreme Court helped launch Abraham Lincoln's national political career, albeit unintentionally. The 1857 Dred Scott decision, which declared that no African American could be a citizen and that even free states must respect the property rights of slaveowners, gave the Illinoisan an issue he would ride to the White House. His opposition to Dred Scott animated his debates with Stephen A. Douglas in 1858 and pervaded the New York speech in February 1860 that propelled Lincoln to the Republican nomination. Yet when he took the oath of office in March 1861, five members of the Dred Scott majority, including the main opinion's author, Chief Justice Roger B. Taney, were still on the court. Not surprisingly, the Supreme Court was widely, and correctly, considered a potential source of opposition to the new president.

Lincoln's struggle to withstand judicial review is the subject of Brian McGinty's fascinating book. Lincoln thought that the Southern rebellion posed an existential threat to the United States, and that he, as commander-in-chief, was authorized to take extraordinary measures to save the Union. These included the suspension of habeas corpus without prior congressional approval, a blockade of Southern states by U.S. warships and the emancipation of slaves without compensation.

History has generally been kind to Lincoln's approach, but it was controversial in its time. Taney challenged the suspension of habeas corpus in the 1861 case of ex parte Merryman, asserting that it was "too plain and too well settled to be open to dispute" that only Congress could suspend the right to challenge an unlawful detention in court. But McGinty, a lawyer as well as a historian, shows that the law was cloudier than Taney acknowledged -- and that the Southern-sympathizing chief justice completely failed to take account of the secessionist disorder raging around Washington.

Fortunately for Lincoln, Congress subsequently ratified his decision on habeas. One member of the Dred Scott majority died, and another fled south. By 1863, three new Lincoln appointees were on the court, and they helped reject (by a 5-4 vote) a series of challenges to his blockade of the Confederacy. McGinty is particularly strong in narrating these so-called Prize Cases, which could have undercut the Union war effort.

Some of McGinty's subject matter in Lincoln and the Court has been covered in other recent books. But, as he notes in an afterword, the issue of presidential power in wartime is as fresh as today's headlines. *

Charles Lane, an editorial writer at The Post, is the author of "The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction," out next month.

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