The Broken Constitution: Lincoln, Slavery, and the Refounding of America
Noah Feldman
Farrar, Straus and Giroux, 2021, 368 pp.
Noah Feldman, who teaches at Harvard Law School, has in this outstanding though flawed book given us an account of Abraham Lincoln which lends assistance to the vital portrayal of him provided by Murray Rothbard and Thomas DiLorenzo. This was no part of his intent; to the contrary, he intends to vindicate Lincoln as the founder of a “second Constitution” that emerged after the Civil War. To develop the brand-new Constitution, Lincoln overthrew the very first one, and it remains in revealing the extent to which he did so that Feldman adds to the revisionist position.
In essence, Feldman’s argument is this: from its creation, the United States Constitution was ethically flawed, as it rested on accepting slavery. Without this submission, the states where slavery played a popular role would not have actually entered the union. In his early political career, Lincoln endorsed this malign arrangement, disclaiming any effort to hinder slavery in the states where it existed. Why did he do so, provided his individual opposition to slavery? The answer depends on his unwavering dedication to union; though slavery was ethically incorrect, it needed to be tolerated because otherwise the Union would liquify. In taking this position, Lincoln followed his political coach, Henry Clay, the Great Compromiser, and he shared also Clay’s dream to transplant American blacks outside the United States.
The constitutional compromise that Lincoln supported could not be sustained after sectional hostilities increased throughout the 1850s, and, rather than accept Southern secession, he responded in a radical method. He argued that the American system did not rest on permission, but on majoritarian democracy; and once he ended up being president, he increasingly more saw himself as incarnating the popular will. In his new role, he suspended habeas corpus, the structure for the guideline of law, and censored and imprisoned his critics.
It would be challenging to find in the literature a more terrible indictment, however Feldman in the end vindicates Lincoln. He changed the old, immoral Constitution with a brand-new one based on equality. The new document suffered a severe obstacle with the end of Restoration, however in the post– The second world war period, progress towards equality has actually resumed, though with numerous delays and retreats. Onward and up!
Feldman makes clear his view of the original Constitution: “The Constitution we know today enshrines the value of human equality that practically all Americans share … On the other hand, the antebellum Constitution rested on a compromise that was comprehended from the start to be amoral or even immoral: namely, the preservation and perpetuation of slavery” (p. 7). Feldman has actually here made a baseless leap. From the property that slavery is immoral, it does not follow that it is unethical for opponents of slavery to join a political union with servant owners.
The author points out in passing Lysander Spooner’s reading of the Constitution as antislavery but rejects it: “Spooner’s argument started with the principle that slavery was an infraction of natural law, and could be legally established just by the valid legal act of some legislature and convention … The federal Constitution … did not mention slavery. Consequently, he reasoned, the Constitution did not and might not acknowledge slavery” (pp. 68– 69). Feldman seems to me correct that the of the Constitution did intend to acknowledge slavery, and their use of euphemisms instead of “slave” and its cognates does not gainsay this; however Feldman has actually missed out on the force of Spooner’s contention. From Spooner’s property that just a legitimate legal act could establish slavery, and from the extra property that slavery need to be explicitly pointed out in a legally legitimate act to do this, it does certainly follow that the Constitution did not legally establish slavery. It is no part of Spooner’s argument that the framers of the Constitution accepted his property about what was legally needed to develop slavery, and the failure to understand this has actually led Feldman and other critics of Spooner astray.
For Spooner and other abolitionists there could be no compromise with slavery; however Lincoln was a fan of Henry Clay, and his viewpoint was rather otherwise. “What drew Lincoln most powerfully to Clay was his credibility as the Great Compromiser– the man who had held the union together” (p. 36). Like Clay, he hoped that freed blacks might be settled outside the United States, a hope that continued well into the Civil War: “Lincoln thought [in 1862] he could mitigate white issues about abolition by making it clear that he shared the belief that whites and free Blacks could not live side by side, and by highlighting the solution that he had actually always accepted in the past: sending free African Americans abroad to colonies specially developed for them” (p. 271).
Southern secession put many fans of the Union in a quandary. The Constitution provided the federal government no power to invade a state, a fact that Lincoln’s predecessor, James Buchanan, acknowledged, noting that the ” had actually thought about authorizing federal coercion of the states, and had rejected it” (p. 144). Buchanan was not alone:” [N] o one, consisting of Andrew Jackson, had ever clearly argued before that the Constitution authorized or bound full-blown invasion and coercive steps, not just to implement federal law or bring back federal property but likewise to force entire states to rejoin the union” (pp. 177– 78).
Lincoln reacted to the predicament in a radical way. He turned down the “timeless consent” formula that the authors of the Declaration of Independence had drawn from John Locke. “A permanent right to withdraw from constitutional government would render the majority continuously susceptible to the minority’s hazard to leave. The solution– the only rationally possible option– was for the bulk to be able to push the minority, efficiently turning down the minority’s withdrawal of its authorization. The sort of browbeating had less in common with the views of Locke and Madison than it made with those of Locke’s predecessor, the thinker Thomas Hobbes” (p. 165). Feldman’s point is outstanding, however he ought to have accentuated the contradiction that Lincoln proclaimed impassioned allegiance to the Declaration of Independence while repudiating the doctrine of federal government by permission on which it rested.
Not just did Lincoln undertaking to replace the teaching of permission with a brand-new theory of majoritarian democracy, however he saw himself as an instrument of the democratic electorate, entitled to rule by arbitrary decree. He suspended the writ of habeas corpus, though he had no legal power to do so, arguing that he required to act in this method to maintain the Union. “This formulation came really near to a dictator’s claim to be licensed by the people to break ordinary constitutional restraints” (p. 243). Feldman concludes that “the liberty of political speech was reduced in this duration more thoroughly than in any other age in U.S. history– no matter what regretful frame some commentators want to put around it” (p. 246). The book includes a comprehensive account of Lincoln’s jail time and censorship of his critics.
In acting in this way, as Feldman notes, Lincoln complied with the pattern of the “sovereign dictator,” determined by the German legal theorist Carl Schmitt, who presumed the power to suspend the constitution in an emergency situation, and Schmitt in truth aimed to Lincoln as a design for what he wanted. (Although, as Feldman notes, Schmitt signed up with the Nazi Party in 1933, he fell out of favor in 1936, and he was not “Adolf Hitler’s favorite constitutional lawyer” [p. 238])
Although Feldman has actually collected the products for a destructive indictment of Lincoln, he holds that Lincoln’s actions were vindicated by occasions once the president fully dedicated himself to the abolition of slavery through constitutional modification. Now, a brand-new constitution might be formed, and this brand-new constitution was no longer morally flawed.
Feldman’s argument is hard to follow. Whether the “new” Constitution did not have a moral stopping working present in the initial document leaves unblemished the problem of authorization, to which Feldman has rightly drawn our attention. If states want to withdraw from the brand-new Constitution, would dictatorial methods of Lincoln’s sort to oblige them to stay be justified? It barely appears so.