| Book Reviews | Lincoln and the Constitution he who is a man may, as a matter of treat rebel property after the Union self-government, do just as he pleases Army seized it. Congress passed the By Brian R. Dirck with him. But if the negro is a man, First and Second Confiscation Acts Southern Illinois University Press, Carbondale, is it not to that extent, a total destruc- declaring that such property was for- Illinois, 2012. 168 pages, $19.95. tion of self-government, to say that he feited to the Union. The constitutional too shall not govern himself?” Lincoln problem was whether it could be used arguments such as this not only confiscated permanently. Article III, REVIEWED BY HEN R Y S. CO H N against popular sovereignty, but later section 3, of the Constitution prohibits against Justice Roger B. Taney’s opin- forfeiture as a punishment for treason Brian Dirck’s Lincoln and the ion in Dred Scott v. Sandford that “except during the Life of the Person Constitution is a departure from his members of the “negro race” were attainted” (the rebel slave owner). previous book, Lincoln the Lawyer, “altogether unfit to associate with the Lincoln feared that heirs of slave own- which pictured Lincoln as a folksy, white race either in social or political ers might claim that the Constitution pragmatic Western populist. In his relations, and so far inferior that they had been violated if their property new book, Dirck shows how Lincoln’s had no rights which the white man was taken. At Lincoln’s request, there- constitutional thinking increasingly was bound to respect, and that the fore, Congress passed a joint resolu- matured, as he considered issues such negro might justly and lawfully be tion, which became law the same as the expansion of slavery into the reduced to slavery for his benefit.” day as the Second Confiscation Act territories, the right of states to secede When Lincoln became President, (July 17, 1862), providing that the from the Union, the President’s war his views of the Constitution became Second Confiscation Act shall not be powers, and postwar reconstruction. less tied to the Declaration of “construed as to work a forfeiture of In his early career, as a strug- Independence. According to Dirck, the real estate of the offender beyond gling attorney, Lincoln revered the Lincoln now “saw the Constitution his natural life.” Dirck inaccurately Constitution because it had been and the rule of law it represented as writes that Congress “amended” the drafted by men he regarded as a vehicle designed to get Americans Second Confiscation Act (rather than heroes for having risked their lives somewhere, some place higher and enacting a separate joint resolution), in the Revolutionary War. Starting in better than where they had been: a and he writes as if the joint resolu- 1854, however, when enactment of more perfect union.” Saving the Union tion applied to slaves, and not just to the Kansas-Nebraska Act prompted became his goal, as he strongly reject- real estate. Section 9 of the Second Lincoln to become politically involved ed Confederate President Jefferson Confiscation Act declared that slaves in the fight to keep slavery out of the Davis’ opinion that it was a “mon- who escaped to Union lines “shall be territories, he gave deeper thought strous fiction” that, in 1787, the states forever free,” and the joint resolution to the Constitution. The Kansas- had “acted as one people ‘in their did not change that. Nebraska Act had been designed by aggregate capacity’” rather than “as Next, Lincoln determined to go Sen. Stephen A. Douglas to allow set- distinct and sovereign political com- further toward freeing the slaves. He tlers in those two territories to deter- munities.” decided that to deprive the Confederacy mine through “popular sovereignty” Lincoln’s exercise of his presidential of its slaves’ labor and to allow the whether to permit slavery in each powers as he tried to lead the Union to slaves to join the Union army was a territory. Lincoln developed his views victory met with some knotty consti- military necessity that could be imple- on the Constitution in his 1854 speech tutional problems. One issue was the mented pursuant to his power under in Peoria, Ill., in his 1858 debates with power to suspend the writ of habeas Article II, section 2, as the commander Douglas, and in his 1860 Cooper Union corpus. Soon after the war began in in chief of the Army and Navy. On address. Lincoln saw the Constitution April 1861, with Maryland’s pro-Con- Sept. 22, 1862, he issued a prelimi- as the “silver frame” designed to federate citizenry preventing Union nary Emancipation Proclamation stat- preserve the “golden apple” of the troops from reaching Washington, ing that, on Jan. 1, 1863, all slaves in Declaration of Independence. The D.C., and with Congress out of ses- any state that remained in rebellion Declaration of Independence stated sion, Lincoln took the position that he “shall be then, thenceforward, and that the government derives its pow- could suspend habeas corpus without forever free.” He kept his word and ers from the consent of the governed, congressional approval, even though issued the Emancipation Proclamation but slavery violated this principle by Justice Taney, in Ex parte Merryman, on the date promised. allowing a master to govern his slaves found that, because the power to sus- As the Civil War neared its end, without their consent. As Lincoln said pend is in Article I—the part of the Lincoln realized that his war pow- in his Peoria speech, “The doctrine Constitution that governs Congress—it ers might not be sufficient to ensure of self government ... depends upon belongs only to Congress. the demise of slavery, so he lobbied whether a negro is not or is a man. ... Lincoln also had to navigate a con- Congress to pass the 13th Amendment. If he is not a man, why in that case, stitutional minefield to decide how to Although the Radical Republicans saw 66 | The Federal Lawyer | October/November 2012 the amendment to imply a national and their clerks, illuminating how the nature of the judicial profession pro- guarantee of basic citizenship rights, personal relationships between jus- hibited him from voicing elsewhere.” Lincoln took a more conservative tices and clerks affect the Court. The Holmes, therefore, expected his clerks approach and sought merely to end contributors—some of them former to be “familiar with recent cultural slavery. After his death, the Radicals Supreme Court law clerks—include and intellectual developments.” Under Republicans would succeed with law professors, judges, academics, Justice Louis Brandeis, a law clerk’s the adoption of the 14th and 15th and legal journalists, and they provide duties expanded, and Brandeis’ clerk- Amendments. first-hand accounts of the inner work- ship model was the precursor for the Lincoln was pleased with Congress’ ings of the justices’ chambers. The modern clerkship institution. passage of the 13th Amendment (the book is divided into three parts: “The Every justice has had a distinc- states adopted it after Lincoln’s death), Origins of the Clerkship Institution,” tive approach to tackling the cham- telling a celebratory crowd on Feb. 1, which discusses, among other jus- bers workload, including deciding 1865, that “this amendment is a King’s tices, Holmes, Brandeis, and Cardozo, how much writing a clerk would do. cure for all evils” of the war. “[I]t winds and their clerks; “The Premodern Andrew Kaufman writes that Justice the whole thing up ... the fitting if not Clerkship Institution,” which discuss- Benjamin Cardozo made pre-argument indispensable adjunct to the consum- es, among others justices, Black and work the clerk’s major responsibility, mation of the great game we are play- Frankfurter, and their clerks—includ- but did his own legal research and ing.” In April 1865, Lincoln advocated ing the first female clerk; and “The opinion writing. Cardozo was produc- giving “the elective franchise ... to the Modern Clerkship Institution,” which tive, often writing his opinions on a colored man”—conferring it imme- discusses clerking for Warren, White, pad while pacing. Kaufman explains diately “on the very intelligent, and Marshall, Powell, and others. that Cardozo would have a draft on on those who serve our cause as sol- For recent law school graduates, Sunday, which his “clerk-secretary” diers.” John Wilkes Booth was in the a clerkship on the High Court is an would type the next day. But Cardozo audience for that speech and reacted opportunity of a lifetime, because this was a private person, and he seems to Lincoln’s proposal by seething to a highly coveted position offers keys to never to have had a close relationship fellow conspirator, “now, by God! I’ll the doors of power. Almost every law with his clerks. put him through.” clerk is hired primarily on the basis of In their essay, Todd Peppers and Dirck concludes that, “[w]hile academic achievement, is a graduate Beth See Driver write that Felix [Lincoln] greatly valued and cherished of a top-tiered law school, and has Frankfurter, with his serious demean- both the Constitution and the rule of clerked for a U.S. Court of Appeals or, considered the law clerks to be his law it represented, it was always for judge who is a personal friend or a junior partners. Frankfurter believed him a means to a higher, greater moral former clerk of the Supreme Court that it was not a good use of time to end—some ‘apple of gold.’” We should justice for whom the clerk works. have clerks reviewing petitions for be grateful to Dirck for explaining how Increasingly, clerkship committees at certiorari, and instead he wanted his Lincoln’s worship of the Constitution law schools also push select appli- clerks to draft opinions.