[in 1862]

Is the Constitution Broken beyond Repair?

Noah Feldman, who teaches at Harvard Law School, has in this excellent though flawed book given us an account of Abraham Lincoln which lends support to the critical portrayal of him presented by Murray Rothbard and Thomas DiLorenzo. This was no part of his intention; to the contrary, he aims to vindicate Lincoln as the founder of a “second Constitution” that arose after the Civil War. To establish the new Constitution, Lincoln overthrew the first one, and it is in showing the extent to which he did so that Feldman contributes to the revisionist position.

In essence, Feldman’s argument is this: from its inception, the US Constitution was morally flawed, as it rested on accepting slavery. Without this acquiescence, the states where slavery played a prominent role would not have entered the union. In his early political career, Lincoln endorsed this malign arrangement, disclaiming any attempt to interfere with slavery in the states where it existed. Why did he do so, given his personal opposition to slavery? The answer lies in his wholehearted commitment to union; though slavery was morally wrong, it had to be tolerated because otherwise the Union would dissolve. In taking this position, Lincoln followed his political mentor, Henry Clay, the Great Compromiser, and he shared also Clay’s wish to resettle American blacks outside the United States.

The constitutional compromise that Lincoln supported could not be sustained after sectional hostilities increased during the 1850s, and, rather than accept Southern secession, he responded in a radical way. He argued that the American system did not rest on consent, but on majoritarian democracy; and once he became president, he more and more saw himself as incarnating the popular will. In his new role, he suspended habeas corpus, the foundation for the rule of law, and censored and imprisoned his critics.

It would be difficult to find in the literature a more devastating indictment, but Feldman in the end vindicates Lincoln. He replaced the old, immoral Constitution with a new one based on equality. The new document suffered a grave setback with the end of Reconstruction, but in the post–World War II era, progress toward equality has resumed, though with many delays and retreats. Onward and upward!

Feldman makes clear his view of the original Constitution: “The Constitution we know today enshrines the value of human equality that almost all Americans share…. In contrast, the antebellum Constitution rested on a compromise that was understood from the start to be amoral or even immoral: namely, the preservation and perpetuation of slavery” (p. 7). Feldman has here made an unwarranted leap. From the premise that slavery is immoral, it does not follow that it is immoral for opponents of slavery to join a political union with slave owners.

The author mentions in passing Lysander Spooner’s reading of the Constitution as antislavery but rejects it: “Spooner’s argument began with the principle that slavery was a violation of natural law, and could be legally established only 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 could not recognize slavery” (pp. 68–69). Feldman seems to me correct that the framers of the Constitution did intend to recognize slavery, and their use of euphemisms instead of “slave” and its cognates does not gainsay this; but Feldman has missed the force of Spooner’s contention. From Spooner’s premise that only a valid legal act could establish slavery, and from the additional premise that slavery must be explicitly mentioned in a legally valid act to do this, it does indeed 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 premise about what was legally required to establish slavery, and the failure to realize this has led Feldman and other critics of Spooner astray.

For Spooner and other abolitionists there could be no compromise with slavery; but Lincoln was a follower of Henry Clay, and his opinion was quite otherwise. “What drew Lincoln most powerfully to Clay was his reputation as the Great Compromiser—the man who had held the union together” (p. 36). Like Clay, he hoped that freed blacks could be settled outside the United States, a hope that continued well into the Civil War: “Lincoln believed [in 1862] he could assuage white concerns about abolition by making it clear that he shared the belief that whites and free Blacks could not live side by side, and by emphasizing the solution that he had always embraced in the past: sending free African Americans abroad to colonies specially created for them” (p. 271).

Southern secession put many supporters of the Union in a quandary. The Constitution gave the federal government no power to invade a state, a fact that Lincoln’s predecessor, James Buchanan, recognized, noting that the “framers had considered authorizing federal coercion of the states, and had rejected it” (p. 144). Buchanan was not alone: “[N]o one, including Andrew Jackson, had ever explicitly argued before that the Constitution authorized or obligated full-scale invasion and coercive measures, not just to enforce federal law or restore federal property but also to force whole states to rejoin the union” (pp. 177–78).

Lincoln responded to the quandary in a radical way. He rejected the “classic consent” formula that the authors of the Declaration of Independence had drawn from John Locke. “A permanent right to secede from constitutional government would render the majority constantly vulnerable to the minority’s threat to leave. The solution—the only logically possible solution—was for the majority to be able to coerce the minority, effectively rejecting the minority’s withdrawal of its consent. The sort of coercion had less in common with the views of Locke and Madison than it did with those of Locke’s predecessor, the philosopher Thomas Hobbes” (p. 165). Feldman’s point is excellent, but he ought to have drawn attention to the contradiction that Lincoln professed fervent allegiance to the Declaration of Independence while repudiating the doctrine of government by consent on which it rested.

Not only did Lincoln endeavor to replace the doctrine of consent with a new theory of majoritarian democracy, but 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 needed to act in this way to preserve the Union. “This formulation came very close to a dictator’s claim to be authorized by the people to break ordinary constitutional restraints” (p. 243). Feldman concludes that “the freedom of political speech was suppressed in this period more extensively than in any other era in U.S. history—no matter what apologetic frame some commentators would like to put around it” (p. 246). The book includes a thorough account of Lincoln’s imprisonment and censorship of his critics.

In acting in this way, as Feldman notes, Lincoln conformed to the pattern of the “sovereign dictator,” identified by the German legal theorist Carl Schmitt, who assumed the power to suspend the constitution in an emergency, and Schmitt in fact looked to Lincoln as a model for what he had in mind. (Although, as Feldman notes, Schmitt joined 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 amassed the materials for a devastating indictment of Lincoln, he holds that Lincoln’s actions were vindicated by events once the president fully committed himself to the abolition of slavery through constitutional amendment. Now, a new constitution could be formed, and this new constitution was no longer morally flawed.

Feldman’s argument is difficult to follow. Whether the “new” Constitution lacked a moral failing present in the original document leaves untouched the problem of consent, to which Feldman has rightly drawn our attention. If states wish to secede from the new Constitution, would dictatorial methods of Lincoln’s sort to compel them to remain be justified? It hardly seems so.