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Lincoln and the Court.

Lincoln and the Court. By Brian McGinty. Cambridge, MA: Harvard University Press, 2008. 384 pp.

Lincoln and the Court is a narrative history of Abraham Lincoln's interaction with the U.S. Supreme Court, ranging from his single appearance as counsel before the Court in 1849 (he lost) to the impact of the 1857 Dred Scott decision on Lincoln's political and legal thought, and on through the Civil War years. Throughout much of this period, the Court was dominated by proslavery justices, a source of significant tension between the tribunal and the president.

In clear language, Brian McGinty explores the legal issues, arguments, and decisions in the major cases before the Court, along with the impact of those decisions and their human and legal context. Along the way, he manages to explore many of the less well-known cases, such as the Test Oath Cases that were pending before the Court at the same time as the more famous case of Exparte Milligan, which limited the trial of civilians before military commissions.

If they deal with legal issues at all, most Lincoln biographies and general histories of the Civil War era focus on the president's suspension of the writ of habeas corpus and the resulting litigation in Ex parte Merryman, Ex parte Vallandigham, and Ex parte Milligan. McGinty covers these cases thoroughly, but he correctly points out that the single Supreme Court case with the greatest potential impact on the Union war effort was the decision in the Prize Cases. Indeed, the Prize Cases are still relevant to contemporary debates over presidential war powers.

On April 19, 1861, President Lincoln declared a naval blockade on the ports of the seceded states. Congress was not in session at the time, and the president acted solely under his constitutional powers as commander in chief of the army and navy. Under international law, a warship enforcing a blockade had the right to stop and search merchant vessels, including neutrals, to determine whether they were trading with a blockaded port. If that was the case, and if the cargo included military goods (contraband of war) or enemy-owned property, the ship would be seized and judicial proceedings initiated to determine whether the capture was legal. If the capture was upheld, the ship and cargo would be declared a "prize of war" and sold, the purchase price usually being divided between the government and the crew of the capturing warship.

Early in the Civil War, the U.S. Navy captured several vessels that were violating President Lincoln's blockade, and sent them for prize proceedings before U.S. district courts in Key West, New York, and Boston. The owners of these ships and cargoes contested the captures in court, arguing that the president, acting alone, had no power to declare a blockade. On appeal, the cases were consolidated to be heard together before the Supreme Court. In 1863, in a 5-4 decision, the Court upheld the captures on the basis that when the United States was fighting awar, whether international or civil, the president as commander in chief had the power to use all methods and means of war permitted by international law, including blockade. Had the decision gone the other way, the legitimacy of every military decision taken by President Lincoln, including the Emancipation Proclamation, could have been undermined and the Union war effort paralyzed.

Lincoln and the Court is clearly written, and should be accessible to both lawyers and laymen. The author avoids legal jargon and carefully explains the legal principles underlying the arguments and decisions. However, a few of the issues that McGinty discusses may only interest legal experts, such as whether Roger B. Taney was acting as chief justice or as a circuit court judge when he issued a writ of habeas corpus for John Merryman. This book is highly recommended for anyone who is interested in how our greatest president dealt with constitutional issues during the greatest crisis our country has faced.

--Burrus Carnahan

George Washington University
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Author:Carnahan, Burrus
Publication:Presidential Studies Quarterly
Article Type:Book review
Date:Feb 21, 2011
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