The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have long admired Noah Feldman's work. Amidst the hornet's nest in Cambridge, he was consistently a sober voice. But the quality of his recent writings have declined, precipitously. Look no further than his "fan fiction" about Justices Kavanaugh, Gorsuch, and Barrett. I couldn't bring myself to write about his last column on Court packing. It made me think of a meme: That's a nice nine-member Court you got there; it would be a shame if something happened to it.
Today, 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.
Update: Mike Ramsey offers similar criticism of Feldman's op-ed:
(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.