The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the New York Times, Professor Sean Wilentz (Princeton) review Feldman's new Lincoln book, titled "The Broke Constitution." Wilentz confirmed my suspicions about the book: in order to support the narrative that Lincoln broke the Constitution, Feldman would have to adopt the pro-Confederacy understanding of the Constitution. You should read the entire review, but this passage sums things up well:
The framers, [Jefferson] 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.
Wilentz skewers Feldman's incomplete history. The Harvard law professor downplays and even omits material that does not support his thesis.
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."
On the specifics, Feldman did a shoddy job discussing the Emancipation Proclamation.
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.
Words you never want to see in a book review: "ignores," "overlooks," "fails," and "erased," "strains credulity," and "cuts corners."
Feldman is not alone with sidling up to confederate constitutionalism. The 1619 Project agrees with Chief Justice Taney's interpretation of the Constitution in Dred Scott. So much of the modern progressive project depends on the original Constitution being a failed, sinful document. That argument must be accepted as a doctrine of faith to undermine originalism. How can anyone be an originalist, they argue, if the Constitution was itself "broken." Willentz explains:
Eradicating slavery, Feldman insists, would require breaking the very Constitution that Lincoln claimed to venerate.
See, Feldman contends, Jefferson Davis was a more faithful adherent of the Constitution than was Lincoln! To say it aloud is to realize how misguided these professors are. The better answer is that Davis and Taney were wrong, and Lincoln was right! It is a shame how many sophisticated people feel compelled to agree with the confederates. Yet, we originalists are considered the white supremacists!
Randy Barnett and I are working on a book on slavery and the Constitution, which should be ready by the Fall of 2022–just in the time for the Federalist Society National Lawyers Convention. I hope our book provides a more balanced account of this important topic.