The Feldman Thesis “Lincoln Broke the Constitution” and Its Critics

Harvard Law School Professor Noah Feldman has a new book out The Broken Constitution: Lincoln, Slavery, and the Refounding of America that is attracting attention in academic circles, and controversy. I have not read the book, but I did read Feldman’s essay in the New York Times drawn from the book. Here are some excerpts:

Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was the framers: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787.

The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution.

I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.

This might sound like mere rhetorical license, since Lincoln did not take office until 1861, some 70 years after the Constitution was ratified. And we all recognize that his presidency played an instrumental role in the passage of the 13th, 14th and 15th Amendments, which, by making a decisive break with slavery, became a turning point in our nation’s history.

But I’m making a stronger argument. What has become clear to me is that even before the passage of those Reconstruction amendments — indeed, as a kind of precondition for them — Lincoln fatally injured the Constitution of 1787. He consciously and repeatedly violated core elements of that Constitution as they had been understood by nearly all Americans of the time, himself included.

Feldman joins those modern scholars who believe that the Constitution embedded the racism of its era:

Today, when the United States is engaged in a national reckoning about the legacies of slavery and institutional racism, the story of Lincoln’s breaking of the Constitution of 1787 is instructive. It teaches us not only that the original Constitution was deeply compromised, morally and functionally, by its enshrining of slavery, but also that the original Constitution was shattered, remade and supplanted by a project genuinely worthy of reverence.

Let’s go back to the 18th century. Americans today tend to think of the Constitution of 1787 in exalted moral terms. But the history is otherwise: The original Constitution was a complex political compromise grounded in perceived practical necessity, not moral clarity.

The need to garner the support of smaller states, for example, gave us the Senate. More damning were the compromises over slavery, without which the Constitution could never have been ratified: the repugnant “three-fifths” provision, by which enslaved people were counted as three-fifths of a person for purposes of political representation; the promised 20-year preservation of the slave trade; and the fugitive slave clause, which required even free states to support slavery by returning escapees to their putative masters. These compromises were reaffirmed and reinforced by further compromises enacted by Congress from 1820 to 1850.

In April 1861, when the Civil War began, Lincoln was thoroughly committed to the compromise Constitution, which he had endorsed and embraced for his whole political life. Indeed, the month before, in his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” he said, vowing never to defy what was “plainly written” in the Constitution. “I believe I have no lawful right to do so, and I have no inclination to do so.”

But in the 18 months that followed, Lincoln violated the Constitution as it was then broadly understood three separate times.

First, he waged war on the Confederacy. He did this even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that neither the president nor Congress had the lawful authority to coerce the citizens of seceding states to stay in the Union without their democratic consent. Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based.

Second, Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.

Lincoln justified both of these constitutional violations by a doubtful theory of wartime necessity: that as chief executive and commander in chief, he possessed the inherent authority to use whatever means necessary to preserve the Union.

Third, and most fatefully, Lincoln came to believe that he also possessed the power to proclaim an end to slavery in the Southern states. When he finally did so, issuing the Emancipation Proclamation in January 1863, he eliminated any possibility of returning to the compromise Constitution as it had existed before the war.

Unlike his first two violations of the Constitution, which came quickly, Lincoln’s movement toward emancipation was agonized and slow, precisely because he knew that emancipation would have the effect of destroying the core of the constitutional compromise he had pledged to uphold…

In the end, Lincoln’s decision to issue the Emancipation Proclamation turned on his realization that the war could not be won as he had originally hoped — namely, by inducing the Southern states to rejoin the Union on compromise terms similar to the status quo before the war. To proclaim the enslaved people of the South as emancipated was to announce that there was no going back. The original compromise Constitution would no longer be on offer, even if the South gave up and rejoined the Union.

Contemporary observers, even those unsympathetic to slavery, understood that the Emancipation Proclamation left the original Constitution in tatters. The retired Supreme Court justice Benjamin Curtis, who had dissented from the notorious 1857 decision in Dred Scott v. Sandford (in which the court held that Americans of African descent could not be citizens), said as much in a pamphlet condemning Lincoln’s declaration as a repudiation of the constitutional rule of law.

“By virtue of some power which he possesses,” Curtis wrote, Lincoln “proposes to annul laws, so that they no longer have any operation.”

In the Emancipation Proclamation, Lincoln did just that. The 13th Amendment, which with Lincoln’s encouragement was passed by Congress and sent to the states in February 1865, outlawed slavery in the United States. But in a meaningful sense it merely formalized Lincoln’s guarantee, in issuing the Emancipation Proclamation nearly three years before, that whatever new constitutional order followed the war would no longer be a slavery-based compromise.

Likewise, the 14th and 15th Amendments, enacted after Lincoln’s death in April 1865, formally secured the equal protection of the laws and enfranchised African American men. But Lincoln had already transformed the Constitution from a political compromise into a platform for defending moral principles by invoking its authority to end slavery.

The fact that the Constitution of 1787 was not so much modified as broken and remade during and after the Civil War should be a starting point for nuanced conversations about the true meaning of the Constitution today…

Criticism of Feldman’s Thesis:

Academic criticism of Feldman’s “Lincoln Broke the Constitution” Thesis has been coming in from several scholarly directions. Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the conservative Cato Institute, wrote on the conservative law professor blog Volokh Conspiracy that:

…Feldman plugs his new book about Lincoln in the New York Times. He writes that in the span of 18 months, “Lincoln violated the Constitution as it was then broadly understood three separate times.”

First, Feldman writes that Lincoln “waged war on the Confederacy.” I’m sure his book explains that Lincoln argued there was no war–merely a suppression of insurrection. But that fact doesn’t make it into the essay. This inconvenient truth doesn’t advance Feldman’s narrative that Lincoln “broke[] and remade” the Constitution.

Second, Feldman cites the Emancipation Proclamation as another unconstitutional act. On balance, I agree with Justice Curtis that the Proclamation was unconstitutional. But Lincoln offered a cogent defense of the Proclamation as a wartime measure to appropriate confederate property. Again, Lincoln did not think he was violating the Constitution.

Third, Feldman cites the suspension of habeas corpus:

Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.

No, no, no. Lincoln did not ignore Taney. Read Seth Barrett Tillman’s article, Ex Parte Merryman: Myth, History, and Scholarship. At this point, the failure to engage with Seth’s work is academic malpractice. Feldman is not alone. Many prominent scholars continue to repeat this shibboleth.

Michael Ramsey, a conservative scholar at the University of San Diego, writes:

I agree with the skepticism, only more so.

(1) In the Prize Cases (1863), the Supreme Court rejected the claim that the President’s war against the Confederacy was unconstitutional.  Although the opinion isn’t a model of clarity, it appears to rest on two grounds, both of which seem right to me.  First, the Confederacy initiated a state of war by attacking Fort Sumter and other federal institutions in the South.  Once a state of war is initiated by an enemy, the President has constitutional power to fight it, as part of the executive power and commander-in-chief power.  True, this is not an obvious reading of the Constitution’s original meaning, but I have argued it is correct (see The President’s Power to Respond to Attacks), and more importantly Hamilton argued that it is correct (in response to President Jefferson’s dealings with Tripoli) (see the article linked above, Part II.C.).  Second, Lincoln had delegated power to fight the war under the Insurrection Act of 1807, which empowered the President to use federal troops to suppress insurrection and rebellion.  In any event, the main constitutional objection to Lincoln’s warfighting is that it was unilateral, but once Congress reassembled it mostly ratified Lincoln’s prior  actions.

(2) As to the Emancipation Proclamation, again I agree it’s a somewhat close question but I think Lincoln had the better argument.  The President’s war power includes power to seize or destroy enemy property (especially in a conflict approved by Congress, which the Civil War was by 1863).  If it had been a foreign war, the President’s power over enemy property would be obvious.  The fact that the property was owned by U.S. citizens (albeit citizens in rebellious areas) makes it more difficult, but the Court in the Prize Cases concluded that the war should be treated (for purposes of property seizures) as a foreign war.  It follows that the President had power over enemy property in the Confederacy, including slaves.

(3) I agree with Professor Feldman that unilateral executive suspension of habeas corpus is unconstitutional under the Constitution’s original meaning and was widely understood to be unconstitutional in 1861.  But I agree with Professor Blackman that Professor Tillman’s scholarship makes the Lincoln/Taney episode substantially more complicated than it is often presented.

In sum, these are hard constitutional questions, made especially hard by the project of trying to fit a civil war into the Constitution’s provisions for foreign war. Contra Professor Feldman, the Constitution was not “broadly understood” to operate in particular ways in this context because the context hadn’t previously arisen.  On balance I think Lincoln’s arguments — at least with respect to waging war and the Proclamation — were correct; at least, they were plausible.  As Professor Blackman says, Lincoln did not think he was violating (much less “breaking”) the Constitution.

Probably the most prominent criticism of the Feldman Thesis comes from liberal Princeton historian Sean Wilentz. In his criticism of the 1619 Project, Wilentz has focused on its claim that the Revolution and Constitution were basically pro-slavery projects. Jefferson Davis, of course, agreed with the thesis of Critical Race Theory that the Constitution embeds fundamentally racist principles. Wilentz writes in his New York Times Book Review essay on Feldman’s book:

Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as 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 very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.”

Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

On both points, though, Feldman contends that Davis was right and Lincoln was wrong. Moreover, Feldman argues, despite Lincoln’s professed fidelity to the framers’ work, he was the one who finally broke the Constitution during the Civil War by turning the presidency into a quasi dictatorship, much as his Confederate and Copperhead enemies alleged he did. Only then, Feldman concludes, paradoxically, could America redeem its claims to nobility by purging the original sin of slavery, refounding itself by embracing what he calls a new, expansive “moral Constitution.”

Feldman’s reliance on Jefferson Davis to frame a book on Abraham Lincoln thus makes perfect sense: Aside from the slaveholders’ insistence on the ethical legitimacy of slavery, Feldman’s constitutional analysis consistently backs their arguments over Lincoln’s. Less than perfect, unfortunately, are the renderings of American history he offers to support his surprising thesis.

…Feldman roots his interpretation of Lincoln and slavery in what he now calls the “compromise Constitution” that Madison and the other framers hammered out — the Constitution, he says, that Lincoln would eventually break.

From the start, however, Feldman’s depiction of the Constitution’s connection to slavery is questionable. Although he calls it the “compromise Constitution,” Feldman’s Constitution was almost seamlessly pro-slavery. The famous negotiations that offered concessions to the slaveholders come across more like abject submission. Feldman ignores the antislavery currents inside the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks how much the Constitution’s provision authorizing abolition of U.S. participation in the Atlantic slave trade was an antislavery victory over the lower South, which tried to block it as a dealbreaker — a measure that, even when weakened by a maneuver Madison bemoaned, was the first serious blow ever against the trade undertaken in the name of a national government. Feldman fails to see the Constitution as an ambiguous document that offered protections to the slaveholders but also contained considerable antislavery potential, sufficient for thoughtful if wishful Northern abolitionists like Benjamin Rush to hail it as the death knell of slavery.

Having erased the Constitution’s ambiguities over slavery, Feldman claims antislavery activists down to Lincoln could not seriously invoke the Constitution in order to attack slavery “because the Constitution said nothing against the practice.” With little more to go on than the wispy, hypocritical egalitarian phrases in the Declaration of Independence — dismissed by Feldman as “the slaveholders’ Declaration” — antislavery advocates supposedly railed against slavery with admirable moral fervor but feeble constitutional backing. When Lincoln carefully constructed a historical and constitutional argument for halting slavery’s expansion and hastening its doom for his famous Cooper Institute address in 1860, the result, Feldman contends, was an “odd performance” that incoherently identified antislavery possibilities in the framers’ “compromise Constitution.” Eradicating slavery, Feldman insists, would require breaking the very Constitution that Lincoln claimed to venerate.

In fact, as historians have been detailing for decades, antislavery spokesmen and organizations, from the framer Benjamin Franklin in 1790 up to and including Lincoln’s Republican Party, repeatedly seized upon provisions in the Constitution, from the preamble’s “general welfare” clause to the provision granting Congress authority over the national territories, as instruments to hasten slavery’s demise. Three generations of antislavery constitutionalists, while admitting that the Constitution barred Congress from directly abolishing slavery in the states where it already existed, pushed numerous strategies to place slavery, as Lincoln would put it, “in course of ultimate extinction.” The antislavery constitutionalists’ demands — above all to halt slavery’s expansion, bar the admission of new slaveholding states and uphold state laws that would obstruct the capture and return of fugitive slaves — in time persuaded no less stalwart an abolitionist than Frederick Douglass that the Constitution was a “glorious liberty document.” As incorporated in the Republican Party platform, those demands led directly to Lincoln’s ascension in 1860, Southern secession and the civil war that ended in slavery’s abolition.

Contrary to Jefferson Davis, Lincoln and the Republicans’ triumph did not break the Constitution; it broke the pro-slavery view of the Constitution while vindicating the long beleaguered antislavery view. Nor did Lincoln break an already broken Constitution by assuming quasi-dictatorial powers in order to preserve the Union. Feldman’s charge that Lincoln violated respect for constitutional popular sovereignty by refusing to acquiesce in Southern secession elides that the Constitution established the majority as sovereign in national affairs, and it rests on the assumption, rightly disputed by Lincoln, that the Southern fire-eaters truly represented the will of the Southern citizenry. Even President James Buchanan stated that secession was unconstitutional. Feldman’s criticisms of Lincoln for trivializing and then suspending habeas corpus in much of the North have more merit. Still, it strains credulity to indict Lincoln for tyranny because he took emergency actions, almost exclusively against Confederates, spies and other traitors, in order to save democratic government, all the while holding open elections and suffering the merciless attacks of Democrats.

Finally, Feldman cuts corners to claim that the Emancipation Proclamation was an arbitrary violation of slaveholders’ property rights. In reality, Lincoln wrote the proclamation armed with abundant legal opinion, including a well-known pronouncement of John Quincy Adams affirming the president’s authority to emancipate the enslaved when invasion or insurrection threatened the nation. As an antislavery constitutionalist, meanwhile, Lincoln never conceded an absolute right to property in humans.

Coming at a time when not a few scholars have been saying that our modern Constitution is broken, Feldman’s final paradox — that it took an elected tyrant to emancipate the enslaved and usher in a rebirth of American freedom — can sound ominous. Still, there should be no cause for alarm. “The Broken Constitution” displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past. What it lacks is historical soundness. In the end, Jefferson Davis’s constitutionalism proves, once again, no match for Abraham Lincoln’s.

As I mentioned, I have not read Feldman’s book yet and I don’t have an opinion on  his thesis. If anyone who read the book has an opinion, please share it in the comments.

 

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