by Noah Feldman (Farrar, Straus and Giroux, 384 pp., $30)
Did Lincoln break the Constitution? In his new book, The Broken Constitution, Harvard Law Professor Noah Feldman is unafraid to question whether the Lincoln administration violated core constitutional provisions while waging the Civil War. In doing so, he forces readers to ponder the result of Lincoln’s actions and the war itself: Did Lincoln and the victorious Union Army preserve and amend the existing constitutional structure, or did they produce a plan of government fundamentally different in kind from that which the original framers drafted? Was the Constitution that first emerged from the long, hot Philadelphia summer “broken” and replaced by the decisions of Lincoln, the blood of soldiers, and the legal aftermath of their struggle?
Feldman’s mix of historical research and legal expertise deftly pushes readers to grapple with these questions. The answer he ultimately provides is off the mark.
Feldman reconceptualizes the postbellum constitutional order—with Lincoln as its founder—as a sharp break from America’s constitutional past. According to Feldman, the Southern states “broke” the Constitution by seceding, and Lincoln further broke it with his unilateral suspension of the writ of habeas corpus, suppression of the freedom of speech and press, and his signing of the Emancipation Proclamation. Emancipation was an especially consequential break, as it repudiated the compromise over slavery that lay at the core of the 1787 Constitution. Thus, Lincoln ultimately replaced the “compromise Constitution” of the Philadelphia Convention with the “moral Constitution”—a political charter that, to this day, holds out hope for a nation dedicated to equality and liberty not just in principle, but in practice.
This is a fairly standard American redemptive narrative, with a twist. In Feldman’s telling, we live in a constitutional order founded by Lincoln, one that does not so much perfect the Revolution as break from it and its sinful compromises over human bondage. Thus, Lincoln’s Constitution is moral to its core, with a “continuing power … to expand equality and freedom,” as evidenced, writes Feldman, by judicial decisions like Brown v. Board of Education and Obergefell v. Hodges. This is a Constitution that houses as yet unrealized moral truths that, based on the examples Feldman offers, are presumably waiting to be found and fleshed out primarily by the Supreme Court.
But what if Lincoln’s Constitution is much less protective of substantive justice than Feldman concludes? What if the Constitution is far more democratic than “moral”?
When we pay greater attention to the historical context in which Lincoln supposedly broke the Constitution, we might find that democratic compromise is still our Constitution’s core value. Even the remade, “reconstructed” Constitution only protects a minimal baseline of (judicially enforceable) moral values, and leaves all the rest—politics—to us.
Feldman argues that Lincoln broke the Constitution even as he levied war to preserve it. Some of his actions were troubling. As Feldman notes, “It is disquieting to discover the extent of Lincoln’s suppression of the free press and free expression in wartime,” for “the methods and the scope of the suppression were unprecedented in U.S. history.” Somewhere between fourteen thousand and thirty-eight thousand civilians were subjected to military arrests without warrants during the war, and Feldman convincingly argues that these were by and large unconstitutional.
Since the Constitution places the power to suspend habeas corpus in Article I, its suspension is presumably a legislative, not presidential, power. Yet Lincoln suspended it by himself when Congress was not in session, relying on his Article II duty to take care that the laws be faithfully executed and on the argument of necessity—the need to catch would-be traitors and to silence dissenters who encouraged Union troop desertions. Even when Congress eventually authorized habeas corpus suspension with the Habeas Corpus Suspension Act of 1863, Lincoln disregarded the limits Congress imposed—like the requirement to try civilian prisoners in civilian courts, not military tribunals.
Feldman’s thesis of rupture is less compelling regarding Lincoln’s supposed “break” from the Constitution on the question of slavery. He frames the Civil War as a two-stage struggle: A war simply for restoration of the Union (which would restore the compromise Constitution in full) that morphed into a moral crusade against slavery, especially with Lincoln’s decisive move to issue the Emancipation Proclamation. But the Proclamation did not spring out of nowhere. As historian James Oakes forcefully argues in Freedom National: The Destruction of Slavery in the United States, 1861–1865, emancipation and then abolition were the products of years of anti-slavery constitutional thought and struggle—at the center of which were the Republican Party and Lincoln himself well before the momentous day of January 1, 1863. Anti-slavery constitutionalism had laid the groundwork for emancipation; Southern secession provided the necessary condition to transform once radical arguments into realities.
Indeed, Feldman can only claim that Lincoln ruptured the compromise of the Philadelphia Constitution—not to interfere with slavery in the states where it existed—by downplaying the context of the Proclamation: the brutal civil war then raging. Albeit a contested proposition, respected legal thinkers like John Quincy Adams had long argued that the President’s war powers included the power to emancipate enemy slaves, and Lincoln was careful to restrict the scope of the Proclamation to keep it within this war powers framework. Lincoln was not breaking constitutional boundaries; he was operating at their outermost limits to weaken the rebels, put an end to the violence, and restore a nation and constitutional politics along with it.
Completing the Founding
The Civil War was an organized massacre. Over 50,000 casualties were sustained at Gettysburg alone. Over 30,000 at Chancellorsville; 23,000 at Antietam. An estimated 750,000 Americans died in total.
The Confederates gave up on politics. They sought to break the Constitution; they opted for violence—the ever lurking alternative to politics. In seeking to restore the legal relationship between the federal government and the states, President Lincoln aimed to reinstate politics and law: ballots, not bullets.
In doing so, he and his Republican Party might have stretched and even cracked the Constitution, but they never saw themselves as breaking it. After all, they laid claim to the Declaration of Independence and its commitments to human dignity and natural equality, and they saw the Constitution as the great protector of those ideals. As Lincoln himself put it, the Constitution was the “picture of silver” framing and protecting the “apple of gold” that is the Declaration. “The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it.”
The 1787 Constitution contained compromises with a despicable institution, but there is a reason that over a decade before the Reconstruction Amendments, abolitionists like Frederick Douglass referred to it as a “glorious liberty document.” As historians like Princeton’s Sean Wilentz have argued, the framers’ careful drafting opened the door to a constitutionally legitimate anti-slavery politics. Feldman deems Lincoln’s Cooper Union Address—in which Lincoln meticulously made the case that a majority of the framers were anti-slavery, or at least supported restricting its spread—a “strange … speech.” However, with that speech, Lincoln was aligning the anti-slavery impulse with the framers and the Constitution they had penned. It would be a mistake to claim that Lincoln, and not the traitors who tried to break away, misunderstood the aspirations the Constitution embodied and the political plan of union it demanded.
In the end, the Republicans amended an imperfect Constitution, eliminating slavery and ensuring national protection of basic civil rights. But they did not reject the fact that the Constitution is, at its core, a plan for politics rather than a moral lodestar. Scrubbed of slavery, the Constitution is still the vessel through which compromises are meted out; it does not give us tidy answers to many enduring political, social, and moral questions so much as it gives us a legitimate means of reaching and revising answers together.
Lincoln and the rest of his party grasped that the constitutional compromise over slavery could no longer stand. Thank God they did. In addition to annihilating slavery, what they were after was the return of politics. In the face of destructive and violent war, they wanted a peaceful and democratic politics on a firmer moral footing, but politics nonetheless.
And that is what they gave us: A battered and bettered plan for politics. Nothing more, nothing less.
Image: By Francis Bicknell Carpenter, U.S. Senate: Art & History Home, Public Domain, https://commons.wikimedia.org/w/index.php?curid=507821
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