If current scholarship can't answer the question, then we might look to the telling record of the rump Congress of 1861 in its legislation following the secession fever that spring. On March 2, after seven states had already seceded, an amendment was proposed to outlaw their departure. Today, Pepperdine University law professor H. Newcomb Morse asks the obvious question: "Why would Congress have even considered [Constitutional] amendments forbidding or restricting the right to withdraw from the Union if any such right was already [prohibited] under the Constitution?"

Adding to doubts about Lincoln's logic was his odd use of the marriage metaphor in explaining the concept of the union. He blasted the kind of marriage that the South had in mind: "The Union, as a family relation," Lincoln averred, "would not be anything like a regular marriage at all, but only as a sort of free love arrangement -- to be maintained on what that sect calls passionate attraction."

Sanford Levinson, a University of Texas law professor and constitutional scholar, takes exception to this line, for the argument can be made that free love among the states is exactly what the founders envisioned. "Lincoln's view of secession seems clearly wrong," Levinson wrote in a FindLaw column in 2003. "After all, few of us today support a view of marriage that demands its maintenance whatever the degree of unhappiness (or worse) it brings to one of the parties." Levinson upends Lincoln's metaphor, noting that "every marriage 'constitution' [has] a de facto secession provision. And for good reason: One suspects that many people would hesitate to get married if divorce were legally impossible."

In the 1780s, the sovereign American states were indeed hesitant, enough so that three of them -- Virginia, New York and Rhode Island -- wrote escape clauses into their state ratification documents inexplicitly preserving the right to secede. North Carolina and Rhode Island at first refused to join the union, during which time the nascent nationalist government regarded them as foreign sovereigns.

As Levinson argues, the respectful treatment given North Carolina and Rhode Island "indicates that all the states were in an important sense sovereign when they entered into the Constitution."

By dint of his iconic stature and the kindness of historians (and his assassination, which rendered Lincoln tragic), Lincoln's claims of the illegality of Southern secession come to us pure, unalloyed and unassailable across the judgment of the ages. But Lincoln was not the moral paladin that the hagiographic textbooks portray him to be.

We might take a moment to consider the maverick history -- some call it the real history, others denounce it as a blasphemic, spiteful revision -- that places Lincoln as the first of the imperial presidents, an opportunist who in service of a vast expansion of federal power twisted the law in the name of what neoconservatives (who happen to be Lincoln lovers all) call moral clarity.

Loyola College professor of economics Thomas DiLorenzo, in his 2002 book "The Real Lincoln," argues -- and is much attacked for it -- that Lincoln's "moral clarity" was entirely fiscal. Lincoln as the inheritor of the Whig/Hamiltonian principles of centralized government, writes DiLorenzo, fought the war of 1861-65 not to abolish slavery or gestate "a new birth of freedom" but to erect high protective tariffs that would promote Northern industry (industry that bankrolled the Republican Party), while government would offer subsidies to companies building canals and railroads. Lincoln presided, says DiLorenzo, over the bloody birth of the American corporate-welfare imperium.

While DiLorenzo has his objectors, it's clear from Lincoln's own words that the blood of the Civil War was not shed, as popular convention would have it, in service of destroying slavery (which likely would have died a natural death from economic, technological and mass immigrant pressures). Responding to a New York Tribune editorial, which challenged him to emancipate the slaves, Lincoln, in the summer of 1862, wrote to Tribune editor Greeley: "If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it ... What I do about slavery, and the colored race, I do because I believe it helps to save the Union."

Notably, the 1862 Emancipation Proclamation arrived just two weeks before that year's gubernatorial elections, which lends weight to the suggestion that freeing the slaves was a political maneuver; after all, politicians do not make earth-shattering decisions on a whim two weeks before an election. The Emancipation Proclamation freed the slaves where they were already free, in the North, and freed them where it had no jurisdiction, in the Confederacy. It also had the effect of stirring up violent opposition to three Republican governors who were expected to challenge Lincoln in 1864. The governors were toppled from office by an electorate driven as much by racism as disgust at what appeared to be a dictatorial fiat.

And if saving the union was Lincoln's sole purpose, then breaking the law appeared to be his method. One wonders what kind of union he hoped in the end to save. As DiLorenzo notes, Lincoln was the first and only president to suspend habeas corpus. He shut down hundreds of newspapers that preached peace or criticized his administration, arrested thousands of political dissenters en masse, censored telegraph communications, used federal troops to intervene in elections, even deported a congressional opponent. Church ministers too felt his heavy hand: They were threatened with imprisonment if they failed to include at the beginning of each service a prayer for Lincoln and the preservation of the union.

According to Edward S. Corwin, writing in 1947 in his book "Total War and the Constitution," Lincoln probably "invented" the war-powers doctrine that has since provided such convenient legal cover for militarist ventures issuing from the White House. Oddly appropriate, then, that George W. Bush, announcing "victory" in his war, should have landed on the USS Abraham Lincoln. Following the attacks of Sept. 11, some news outlets, notably the New York Times, went so far, not incorrectly perhaps, as to dub Bush "Lincolnesque."

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