Sean Wilentz reviews Noah Feldman’s new Lincoln book, “The Broken Constitution”


In New York Times, Professor Sean Wilentz (Princeton) reviews Feldman’s new Lincoln book, “The Broke Constitution”. Wilentz confirmed my suspicions about the book: To support the narrative that Lincoln broke the Constitution, Feldman would have had to adopt the pro-Confederation interpretation of the Constitution. You should read the entire review, but this passage sums things up nicely:

The framers, [Jefferson] Davis pronounced, he had enshrined in the Constitution the right to hold property on human beings, but the frenetic anti-slavery northerners undermined the law of the land; and now the deluge was increasing, pouring “turgid waters through the broken constitution.” Davis’ pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book on Jefferson Davis’ nemesis Abraham Lincoln, which seems like a very strange choice. Unlike Davis, Lincoln never believed the Constitution was broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln accused that the insurrection Davis helped lead was “the essence of anarchy.” On both points, however, Feldman argues that Davis was right and Lincoln was wrong. Furthermore, Feldman argues that, despite Lincoln’s professed allegiance to the framers, he was the one who ultimately broke the Constitution during the Civil War by turning the presidency into a near-dictatorship, just as his Confederate enemies and Copperhead claimed. Only then, concludes Feldman, paradoxically, could America redeem its claims to nobility by eliminating the original sin of slavery, refounding itself by embracing what it calls a new, expansive “moral constitution”. Lincoln therefore makes perfect sense: Aside from slave owners’ insistence on the ethical legitimacy of slavery, Feldman’s constitutional analysis supports their arguments consistently with Lincoln’s.. Less than perfect, sadly, are the interpretations of American history he offers in support of his surprising thesis.

Wilentz stabs Feldman’s incomplete story. The Harvard law professor downplays and even omits material that doesn’t support his thesis.

From the outset, however, Feldman’s portrayal of the Constitution’s connection with slavery is questionable. Although he calls it the “Compromise Constitution,” Feldman’s Constitution was almost perfectly pro-slavery. The famous negotiations that offered concessions to the slaveholders present themselves more as a miserable submission. Feldman ignore the anti-slavery currents within the Federal Convention that challenged and sometimes defeated pro-slavery delegates. Hey overlooks how much the provision in the Constitution authorizing the abolition of U.S. participation in the Atlantic slave trade was an anti-slavery victory over the lower south, which sought to block it as a headache – a measure that, even when weakened by a maneuver lamented by Madison was the first serious blow ever against trade undertaken in the name of a national government. Feldman fails see the Constitution as an ambiguous document that offered protection to slaveholders, but also contained considerable anti-slavery potential, sufficient for thoughtful, albeit eager, Northern abolitionists such as Benjamin Rush greet him as the death knell of slavery. Having deleted the Constitution’s ambiguities about slavery, Feldman argues that anti-slavery activists up to Lincoln could not seriously invoke the Constitution to attack slavery “because the Constitution said nothing against the practice.”

Specifically, Feldman did a poor job of discussing the emancipation proclamation.

Still, it is puts a strain on credulity accuse Lincoln of tyranny because he took emergency action, almost exclusively against Confederates, spies and other traitors, in order to save the Democratic government, holding open elections and suffering the merciless attacks of the Democrats. Finally, Feldman cut corners to argue that the Emancipation Proclamation was an arbitrary violation of the property rights of slaveholders.

Words you would never want to see in a book review: “ignore”, “neglect”, “fail” and “erase”, “strive for credulity” and “cut corners”.

Feldman is not alone in stealthily siding with Confederate constitutionalism. The 1619 Project agrees with the interpretation of the Constitution of the President of the Supreme Court Taney in Dred Scott. Much of the modern progressive project hinges on the original Constitution being a failed and sinful document. Such an argument must be accepted as a doctrine of faith to undermine originality. How can one be original, they argue, if the Constitution itself has been “broken”. Willentz explains:

Eradicating slavery, Feldman insists, would require breaking the very constitution that Lincoln claimed to venerate.

You see, argues Feldman, Jefferson Davis was a more loyal follower of the Constitution than Lincoln! Saying it out loud means realizing how misguided these professors are. The best answer is that Davis and Taney were wrong and Lincoln was right! It is a pity how many sophisticated people feel compelled to agree with the Confederates. Still, we originals 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 time for the Federalist Society National Lawyers Convention. I hope our book provides a more balanced account of this important topic.


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