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- Nov. 2, 2021, 5:00 a.m. ET
THE BROKEN CONSTITUTION
Lincoln, Slavery, and the Refounding of America
By Noah Feldman
Over the people of 2 days successful February 1850, amid the debates successful the U.S. Senate that would pb to the celebrated legislature compromise implicit slavery aboriginal that year, Jefferson Davis of Mississippi delivered a florid level speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would instrumentality bureau arsenic the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s precise foundations. The framers, Davis pronounced, had enshrined successful the Constitution the close to clasp spot successful humans, but frenzied antislavery Northerners undermined the instrumentality of the land; and present the flood was surging, pouring “turgid waters done the breached Constitution.”
Davis’s pro-slavery remarks supply Noah Feldman with some the epigraph and the rubric of his caller publication astir Jefferson Davis’s nemesis, Abraham Lincoln, which seems a precise unusual choice. Unlike Davis, Lincoln ne'er believed that the Constitution had been broken, adjacent aft the slaveholders began their rebellion successful 1860-61. Instead, Lincoln charged that the insurrection Davis helped to pb was “the essence of anarchy.”
On some points, though, Feldman contends that Davis was close and Lincoln was wrong. Moreover, Feldman argues, contempt Lincoln’s professed fidelity to the framers’ work, helium was the 1 who yet broke the Constitution during the Civil War by turning the presidency into a quasi dictatorship, overmuch arsenic his Confederate and Copperhead enemies alleged helium did. Only then, Feldman concludes, paradoxically, could America redeem its claims to nobility by purging the archetypal misdeed of slavery, refounding itself by embracing what helium calls a new, expansive “moral Constitution.”
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Feldman’s reliance connected Jefferson Davis to framework a publication connected Abraham Lincoln frankincense makes cleanable sense: Aside from the slaveholders’ insistence connected the ethical legitimacy of slavery, Feldman’s law investigation consistently backs their arguments implicit Lincoln’s. Less than perfect, unfortunately, are the renderings of American past helium offers to enactment his astonishing thesis.
A prof astatine Harvard Law School and a prolific student and commentator connected existent affairs, Feldman is good equipped to measure Lincoln’s law record. A lucid, provocative stylist and an adept successful fields ranging from Islamic authorities to the American separation of religion and state, helium is wide known for an illuminating governmental biography of James Madison. “The Broken Constitution” tin beryllium work arsenic a sequel to that book, connecting the nation’s founding and aboriginal years to what Lincoln called the “astounding” result of the Civil War. Indeed, Feldman roots his mentation of Lincoln and slavery successful what helium present calls the “compromise Constitution” that Madison and the different framers hammered retired — the Constitution, helium says, that Lincoln would yet break.
From the start, however, Feldman’s depiction of the Constitution’s transportation to slavery is questionable. Although helium calls it the “compromise Constitution,” Feldman’s Constitution was astir seamlessly pro-slavery. The celebrated negotiations that offered concessions to the slaveholders travel crossed much similar abject submission. Feldman ignores the antislavery currents wrong the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks however overmuch the Constitution’s proviso authorizing abolition of U.S. information successful the Atlantic enslaved commercialized was an antislavery triumph implicit the little South, which tried to artifact it arsenic a dealbreaker — a measurement that, adjacent erstwhile weakened by a maneuver Madison bemoaned, was the archetypal superior stroke ever against the commercialized undertaken successful the sanction of a nationalist government. Feldman fails to spot the Constitution arsenic an ambiguous papers that offered protections to the slaveholders but besides contained sizeable antislavery potential, capable for thoughtful if wishful Northern abolitionists similar Benjamin Rush to hail it arsenic the decease knell of slavery.
Having erased the Constitution’s ambiguities implicit slavery, Feldman claims antislavery activists down to Lincoln could not earnestly invoke the Constitution successful bid to onslaught slavery “because the Constitution said thing against the practice.” With small much to spell connected than the wispy, hypocritical egalitarian phrases successful the Declaration of Independence — dismissed by Feldman arsenic “the slaveholders’ Declaration” — antislavery advocates supposedly railed against slavery with admirable motivation fervor but feeble law backing. When Lincoln cautiously constructed a humanities and law statement for halting slavery’s enlargement and hastening its doom for his famous Cooper Institute address successful 1860, the result, Feldman contends, was an “odd performance” that incoherently identified antislavery possibilities successful the framers’ “compromise Constitution.” Eradicating slavery, Feldman insists, would necessitate breaking the precise Constitution that Lincoln claimed to venerate.
In fact, arsenic historians person been detailing for decades, antislavery spokesmen and organizations, from the framer Benjamin Franklin successful 1790 up to and including Lincoln’s Republican Party, repeatedly seized upon provisions successful the Constitution, from the preamble’s “general welfare” clause to the proviso granting Congress authorization implicit the nationalist territories, arsenic instruments to hasten slavery’s demise. Three generations of antislavery constitutionalists, portion admitting that the Constitution barred Congress from straight abolishing slavery successful the states wherever it already existed, pushed galore strategies to spot slavery, arsenic Lincoln would enactment it, “in people of eventual extinction.” The antislavery constitutionalists’ demands — supra each to halt slavery’s expansion, barroom the admittance of caller slaveholding states and uphold authorities laws that would obstruct the seizure and instrumentality of fugitive slaves — successful clip persuaded nary little stalwart an abolitionist than Frederick Douglass that the Constitution was a “glorious liberty document.” As incorporated successful the Republican Party platform, those demands led straight to Lincoln’s ascension successful 1860, Southern secession and the civilian warfare that ended successful slavery’s abolition.
Contrary to Jefferson Davis, Lincoln and the Republicans’ triumph did not interruption the Constitution; it broke the pro-slavery presumption of the Constitution portion vindicating the agelong beleaguered antislavery view. Nor did Lincoln interruption an already breached Constitution by assuming quasi-dictatorial powers successful bid to sphere the Union. Feldman’s complaint that Lincoln violated respect for law fashionable sovereignty by refusing to acquiesce successful Southern secession elides that the Constitution established the bulk arsenic sovereign successful nationalist affairs, and it rests connected the assumption, rightly disputed by Lincoln, that the Southern fire-eaters genuinely represented the volition of the Southern citizenry. Even President James Buchanan stated that secession was unconstitutional. Feldman’s criticisms of Lincoln for trivializing and past suspending habeas corpus successful overmuch of the North person much merit. Still, it strains credulity to indict Lincoln for tyranny due to the fact that helium took exigency actions, astir exclusively against Confederates, spies and different traitors, successful bid to prevention antiauthoritarian government, each the portion holding unfastened elections and suffering the merciless attacks of Democrats.
Finally, Feldman cuts corners to assertion that the Emancipation Proclamation was an arbitrary usurpation of slaveholders’ spot rights. In reality, Lincoln wrote the proclamation equipped with abundant ineligible opinion, including a well-known pronouncement of John Quincy Adams affirming the president’s authorization to emancipate the enslaved erstwhile penetration oregon insurrection threatened the nation. As an antislavery constitutionalist, meanwhile, Lincoln ne'er conceded an implicit close to spot successful humans.
Coming astatine a clip erstwhile not a fewer scholars person been saying that our modern Constitution is broken, Feldman’s last paradox — that it took an elected tyrant to emancipate the enslaved and usher successful a rebirth of American state — tin dependable ominous. Still, determination should beryllium nary origin for alarm. “The Broken Constitution” displays its author’s accustomed brilliance and boldness successful his contrarianism, and a passionate engagement with the past. What it lacks is humanities soundness. In the end, Jefferson Davis’s constitutionalism proves, erstwhile again, nary lucifer for Abraham Lincoln’s.