Of all the questions Noah Feldman’s 2021 book, The Broken Constitution: Lincoln, Slavery, and the Refounding of America, brings to the fore, the largest greets the reader in the epigraph. Feldman, Harvard Law professor and constitutional scholar, begins his work on the constitutional thinking of Abraham Lincoln with a quip from Jefferson Davis. “A moral crevasse has occurred,” Davis is quoted as saying from the congressional floor in 1850, “fanaticism and ignorance, political rivalry, sectional hate, strife for sectional dominion, have accumulated into a mighty flood, and pour their turgid waters through the broken Constitution.” The question looming here is as obvious as it appears: what is this moral crevasse, and why has Feldman, in a book centered on Lincoln, America’s most famous liberator, chosen the future president of the Confederacy to articulate its opening?
The book turns on this choice. Feldman paints the American constitutional project, from its beginnings, as one of contractual compromise. This is distinct from compact theory, which specifies the Constitution as a compact between the many existing states, rather than an act of a nation of sovereign people. Secession, or the right to it, would follow logically as an extension of this idea. What was the Constitution for? Feldman answers that “the Constitution was simply the necessary precondition for the union”—the legally binding, contractual agreement that embodied the compromise that enabled the Union to be. As born of compromise, the Constitution was “not a higher law in the moral sense,” but rather “all-encompassing law.” One need look no further than the Declaration of Independence, with its reverent language seeking total equality of man, or the Constitution’s own Preamble, with its overlay of fundamental governing values for a sovereign people, for reasons to facially question this assertion. In Giving Meaning to the Preamble, constitutional scholar Erwin Chemerinsky identifies these governing values as democratic government, effective governance, justice, freedom, and equality. Feldman, however, takes compromise theory in stride, as given. Crucially, what comes along as unquestioned here is the core notion that the Constitution was inherently a pro-slavery document.
Historian Gordon Wood notes that Feldman’s is a well-established approach, one both apologists for slavery like Chief Justice Roger Taney and abolitionists such as William Lloyd Garrison (who himself came to call the Constitution a “covenant with death” and “an agreement with hell”) agreed upon as a premise. Wood also notes, however, that a deeply rooted anti-slavery interpretation of the Constitution existed in tandem, developing out of “a dialectical struggle with pro-slavery constitutionalism in antebellum America,” a view which historian James Oakes also advocates for. Wood states that Oakes, in his book, The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution (2021), begins this argument with effective force by tracing the
“Northern opponents of slavery…[to] emphasizing that the Constitution never mentioned ‘slaves’ or ‘slavery,’ that it never accepted the idea that there could be property in man and that with the ending of the international slave trade in 1808 it promised a future for the nation without the despicable institution.”
To this point, historian Sean Wilentz emphasizes in his own criticism of Feldman’s work that a major flaw in Feldman’s presentation of the Constitution is that it is “almost seamlessly pro-slavery.” On Wilentz’s reading, Feldman fails to recognize the anti-slavery debates and rhetoric occurring inside the Federal Convention that challenged and occasionally defeated pro-slavery delegates and arguments. Instead of acknowledging the early possibility of an anti-slavery constitution fairly, Feldman offers a facially restricted narrative. Such a contentious view deserves, at the least, more breathing room. We do not get it here.
This noticeable disregard for the Constitution’s anti-slavery potential or aspiration dictates Feldman’s framing of Abraham Lincoln’s life, as he introduces the young Lincoln through a geography that only a compromise constitution could produce. Lincoln’s early life (including his family’s travel from Kentucky to Indiana and Illinois, and his flatboat journeys downriver to Louisiana), exposed him to the “riverine geography that shaped the structure of the economy in states like Illinois and Missouri—and thus to the underlying logic of the compromise constitution.” This compromise revolved around state-to-state commerce, wherein the economic reality of the American slave trade “trumped moral intuitions” across states, resulting in a robust and wide-reaching slave economy. This “economic logic” remained as binding in the western states Lincoln came to call home as for the southern states that he was encountering as he traveled, a fact Lincoln poignantly recorded during his eye-opening visits to the New Orleans slave markets.
The authorial choice to set up Lincoln as a traveler journeying through an economic landscape matters. Feldman builds his dialectic of Lincoln’s political character and constitutional thinking as growing out of a rural understanding of the contractual economics of a nation expanding. This is a vision distinct from, and perhaps even purposefully noncommunicative with, other theories of America’s anti-slavery intellectual development and their full effect on Lincoln’s thinking.
Instead, Feldman gives the heart of the Constitution, as an expanding economic compact between slave-holding and non-slave holding states, a second life in the hands of Henry Clay, the Great Compromiser. Clay, prominent Kentucky politician, was responsible for crafting the Missouri Compromise—an agreement which created a precedential rule of admittance for new states: one slave, one free. As a Whig politician, Clay espoused a specific compromise position, regarding the Constitution as a “framework for preserving the union by protecting slavery where it existed…[yet] compatible with limiting the extent of slavery so that it might somehow die a ‘natural death.’” Feldman argues Lincoln found his political footing in the Whig party as an adamant believer in Clay and his commitments to the preservation of the Union through respect for the compromise constitution.
As Lincoln’s political career rises, so begins Feldman’s analysis of Lincoln’s constitutional thinking. Feldman relies heavily on Lincoln’s political speeches, as many have before him. Focusing specifically on Lincoln’s 1854 Peoria speech in response to the Kansas-Nebraska Act, Feldman explains that Lincoln did not believe in the original compromise constitution (and its quasi-constitutional extension through the Missouri Compromise) because it was fair—Lincoln publicly condemned it as “manifestly unfair”—but rather because it was “settled.” In this tone, Feldman dyes Lincoln’s constitutional faith as one devoted to the spirit of mutual concession and divorces Lincoln’s personal moral rejection of slavery from his public-facing political character. This compromise spirit, however, loses its house with the disappearance of the Whig party and the birth of the Republican Party (founded in 1854 in response to the Kansas-Nebraska Act). Finding himself politically homeless, Lincoln, Feldman contends, was “freshly born” into a spirit of anti-slavery as a Republican, embracing both a new party and the immorality of slavery as an institution for the first time publicly and in tandem.
Notably, Feldman’s handling of the infamous 1857 Dred Scott decision—including both Justice Taney’s opinion and Lincoln’s response—is insightful. For Feldman, the fallout from Dred Scott is a seminal period in Lincoln’s constitutional logic: Lincoln knowingly pushed legal boundaries by arguing that Dred Scott should not be “treated as binding ‘as a political rule’” because it laid “the foundation for spreading…evil into the States themselves.” Feldman maps out how Lincoln, fighting against the Democratic “conspiracy” to make slavery national, argued throughout his presidential bid, particularly in his Cooper Union speech, why Dred Scott should be treated as an individualized case and not a broader constriction on the congressional ability to limit slavery. Feldman traverses these logical leaps smoothly, noting where the boundaries of constitutional law are (how, exactly, can Congress ignore Supreme Court rulings?) and how Lincoln addressed them (by returning to the old compromise constitution as the Republican position).
Feldman’s thesis from this point on is straightforward. The compromise constitution was broken by three key actors: Stephen Douglas (prominent supporter of the Kansas-Nebraska Act and Lincoln’s political opponent), Roger Taney (Supreme Court Chief Justice responsible for deciding Dred Scott), and James Buchanan (President immediately prior to the outbreak of the Civil War). Lincoln responded to this broken compromise with a breaking of his own, reshaping constitutional understanding as president by expanding his executive powers to the point of near “dictatorship” during the Civil War in order to reform the Constitution into a moral regime, one committed to the founding ideals of liberty and equality, which abolished slavery and set all enslaved peoples (in the seceded, unoccupied South) free. Notably, the Emancipation Proclamation itself did nothing for the status of slaves in border states or Union-occupied Confederate territory. Yet, while Feldman navigates Lincoln’s political career and constitutional struggles adeptly, it remains a bridge too far to call this central thesis novel. The concept of the Civil War and the Reconstruction period as re-orientating America’s moral compass onto a path closer to its founding ideals perhaps feels original when portrayed against Feldman’s uncontested pro-slavery constitutional landscape. But one need look no further than to the prolific abolitionists of the period—including 1830s abolitionist and women’s rights activist Angelina Grimké, whom Feldman particularly references—to see that such a thesis lacks novelty when put in dialogue with contemporaneous movements.
This is not to say Feldman’s argument is without innovation. Feldman’s expounding of Lincoln’s constitutional contortions during the Civil War illuminates how Lincoln justified his own executive authority. A stark example of this is the development in Lincoln’s war thinking, as he became more convinced that the Civil War was less a war to preserve the Union above all else, and more a war to abolish slavery. The most prominent example of this transformation—and where the book’s core lies—is the double events of September 1862: Lincoln’s suspension of the writ of habeas corpus and his issue of the Preliminary Emancipation Proclamation. Both events stretch executive power towards seemingly contradictory ends, one harkening back towards the restraints imposed by the somewhat recently overthrown British rule, the other towards a new era in American freedom. Feldman articulates how the language Lincoln used to engage his executive power changed as his thinking did, evolving from Lincoln’s 1861 beliefs that federal emancipation was tyrannical to claiming this authority solely on presidential grounds when announcing the 1863 Emancipation Proclamation in highly personal and biblical terms. Feldman claims it is here that Lincoln comes to rest, not at his original altar of compromise, but within a political theology of moral righteousness. Feldman does not let the fact that Lincoln’s Emancipation Proclamation did not include a significant portion of the enslaved American population, thereby failing to provide such righteous freedom to a large number of persons, obstruct the capacity for this political theology to serve as a moral stronghold.
Civil War, Feldman writes, is itself “the very definition of a failed constitution.” Feldman constructs Lincoln’s reaction to this failure as an opportunity for the birth of a new constitutional regime, one reliant upon Lincoln’s political and legal prowess to expand the scope of “necessity” under the executive war powers. The Constitution Feldman maintains Lincoln leaves us with is a reformed moral vision, aspirational in its commitments to a regime of liberty and equality—an interesting peg to hang a coat on, given Lincoln himself remained unwilling to insist on Black suffrage. Nonetheless, The Broken Constitution aims to reconstruct the making of this moral regime by explaining what had to break—commitments to state sovereignty, slavery, more than one constitutional norm and legal boundary—before the constitutional order as we recognize it today was resurrected from the bloody grounds of an old compromise theory which left slavery to the states. This, then, is what lies behind Feldman’s choice of Davis as front man. The moral crevasse Davis invoked on the 1850s congressional floor was a rift between Southern and Northern values on what the Constitution stood for in the moral abstract and what people experienced it to be in a lived, expanding, economic reality. This conception of a Union divided is what Feldman claims Lincoln had to break, again, before it could be repaired a decade later: Lincoln had to deconstruct a lived economic idea of Union before rebuilding it as a higher calling individuals could pursue. However, by failing to meaningfully recognize a reading of the Constitution as an anti-slavery document, Feldman denies his argument the opportunity to grapple with anti-slavery constitutionalism’s early potential and impact as a tool for abolitionist advocacy. This failure allows Feldman to evade head-on more nuanced questions he should have faced regarding Lincoln’s intellectual and constitutional development. Without this struggle, the personal stakes and contours of Lincoln’s political growth remain unduly examined, as does Feldman’s introductory use of Davis as Lincoln’s ideological counterweight.
As a work centered on Lincoln’s constitutional development, Feldman’s book provides compelling insight into a seminal American mind. Yet, Feldman’s reading of the Constitution as strictly pro-slavery collapses the book’s ambition towards novelty. Not even the perceptive nature of the narrative can save this lack of originality.
Acknowledgments
My many thanks to Professors Kenneth Mack and Michael Klarman for their critical commentary on this piece.