By GEOFFREY R. KIRSCH
Review of The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution, by James Oakes, and The Broken Constitution: Abraham Lincoln, Slavery, and the Refounding of America, by Noah Feldman
New York: W.W. Norton, 2021
New York: Farrar, Straus and Giroux, 2021
On the Fourth of July, 1854, William Lloyd Garrison gave the most incendiary fireworks display in American history. Speaking at a rally of his fellow Massachusetts abolitionists, Garrison closed by producing a copy of the U.S. Constitution from his pocket and holding it before the crowd. America’s founding document, he proclaimed, was “the source and parent of all the other atrocities—a covenant with death, and an agreement with hell.” Lighting a match and holding the Constitution to its flame, Garrison proclaimed: “So perish all compromises with tyranny!”
Once again, the Constitution is under fire—figuratively if not literally—for its complicity in America’s original sin. In the 1619 Project essay that would incite a rash of “patriotic education” laws across red-state America, Nikole Hannah-Jones offered an unequivocal indictment of what the historian David Waldstreicher called “Slavery’s Constitution”: the framers, she wrote, “carefully constructed a document that preserved and protected slavery without ever using the word.” As Hannah-Jones portrays it, when the Supreme Court held in the notorious Dred Scott decision that Black Americans were non-citizens with “no rights which a white man was bound to respect” and that slave owners enjoyed constitutional rights in their property, it was an all-too-faithful interpretation of the then-governing Constitution in 1857.
But as Garrison had his opponents in constitutional abolitionists like Gerrit Smith and his erstwhile ally Frederick Douglass—the latter of whom championed the Constitution as a “GLORIOUS LIBERTY DOCUMENT”—so a pair of recent books on Lincoln and the Constitution provide two distinct challenges to the 1619 Project’s neo-Garrisonianism. As one of five prominent historians who authored a letter to the New York Times critiquing the “errors and distortions” of the 1619 Project, James Oakes offers a more squarely oppositional account of an “antislavery Constitution,” with Lincoln as its greatest proponent and the Civil War less a radical break than a course correction. By contrast, the constitutional law scholar Noah Feldman begins on largely the same terrain as Hannah-Jones and Waldstreicher. The Constitution of 1787 was a compromise with slavery, one that the pre-presidential Lincoln was more than willing to preserve. But, Feldman goes on in a narrative as theological as it is political, that Constitution died and was reborn: on the fields of Antietam and Gettysburg, on the pages of the Emancipation Proclamation and the Thirteenth Amendment, and, not least, in the presidential box at Ford’s Theatre. For Feldman, neither 1619 nor 1776 nor 1787 is the birth year of our constitutional and political order so much as it is 1865. But the particular year is ultimately beside the point, for in Feldman’s account the Constitution is defined not by its origin but by its ever-ongoing transformation.
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As Oakes notes in the preface to The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution, “Lincoln once likened the Declaration to a picture, the Constitution to its frame.” Oakes stresses that Garrison’s Constitution-burning brand of abolitionism was a distinctly minority view; Lincoln, like the antebellum Republican Party as a whole, saw no contradiction in wielding constitutional means to antislavery ends. For mainstream abolitionists, the Constitution’s omission of the word “slave” and veiled references to “persons held in service” were not weaselly euphemisms but, as James Madison claimed in his notes from the Constitutional Convention, proof that the framers thought it “wrong to admit…that there could be property in men.” It followed that under the Constitution, freedom was the rule and slavery the exception; or as Charles Sumner put it, freedom was “national” and slavery “sectional.” Slavery could only exist under the auspices of state law, and enjoyed no constitutional sanction at the federal level.
In what Oakes pointedly labels “the Antislavery Project,” antislavery advocates drew upon this principle and called upon the federal government to categorically divorce itself from slavery. In all matters committed to federal control, they argued not merely that Congress had the power to legislate against slavery but that it in fact had no constitutional power to legislate in its favor. On the principle of “freedom national,” Congress was obligated to suppress the Atlantic slave trade, abolish slavery in the District of Columbia, and provide accused fugitive slaves with due process. (If the fugitive slave clause was a conceded exception to the antislavery Constitution, which Lincoln himself pledged to honor in his first inaugural, it was nevertheless tempered by the Constitution’s due process and privileges and immunities clauses—protections that other abolitionists argued were trampled underfoot by the odious Fugitive Slave Act of 1850.) Above all, in diametric opposition to the Supreme Court’s ruling in Dred Scott, the Fifth Amendment’s guarantee of “life, liberty, and property” protected not the property of slave owners but the liberty of Black Americans as constitutionally recognized “persons.” Not only was Dred Scott wrong in holding it unconstitutional to exclude slavery from the territories; it was in fact unconstitutional to allow it there.
The flip side of the “freedom national” doctrine was what Oakes describes as the “federal consensus”: as Congress couldn’t legislate in favor of slavery at the national level, so it couldn’t interfere either with slavery in the Southern states or with emancipation in the Northern states. Few antislavery proponents disputed this point, least of all Lincoln himself, who in his first inaugural not only disclaimed any right to “interfere with the institution of slavery in the States where it exists” but endorsed a constitutional amendment that would have permanently formalized the principle.
If all sides admitted that the Constitution protected slavery where it already existed, can it truly be called “antislavery”? And yet if Lincoln was so committed to the federal consensus, why did his election immediately prompt most of the slaveholding states to secede from the Union? Oakes addresses both questions by returning to the theme of his previous book, The Scorpion’s Sting: Antislavery and the Coming of the Civil War (2014). Preventing slavery’s extension into new territories, and thus into the new states they would eventually become, would strangle the South with a “cordon of freedom.” With their soil exhausted and no new markets for their surplus property, slave owners would be left with an unsustainable and unprofitable investment. Emancipation would eventually be compelled not by federal interference but by economic necessity.
In the years leading up to the Civil War, that project seemed in dire jeopardy, with the trilogy of the Fugitive Slave Act, the Kansas-Nebraska Act, and Dred Scott threatening to make slavery and not freedom national. Oakes attributes these developments not to the Constitution itself but to a nefarious “Slave Power” that had colluded to hijack every level and branch of the federal government. The Constitution was the solution, not the problem, and in 1860 as in 2020, it was thrown into crisis when a large swath of the country refused to accept the election of a president who merely promised a return to normalcy after years of dysfunction.
Even after the secession of the Confederate states and the firing on Fort Sumter, Oakes stresses “the many continuities between antislavery constitutional theory and wartime practice.” Rather than a radical break with the antebellum federal consensus and Lincoln’s own pledge of noninterference, Oakes portrays the Emancipation Proclamation as the fruit of two longstanding constitutional principles. Under the rule of “forfeiture of rights,” seceded states were held to lose any claim to the constitutional protection of their enslaved property, a principle that justified the Union’s confiscation, liberation, and enlistment of fugitive slaves. As previously argued by John Quincy Adams, the war powers clause of the Constitution in turn gave Congress the power to emancipate slaves in the event of a foreign invasion or domestic insurrection. The Emancipation Proclamation drew upon both doctrines to summarily free all enslaved people in rebellious regions.
But for Lincoln, emancipation was just a step towards the larger goal of constitutional abolition. In a paradox that Oakes aptly states but doesn’t fully resolve in the final chapter, “the culmination of antislavery constitutionalism was a major revision of the Constitution.” The Thirteenth Amendment ended the federal consensus by abolishing slavery nationwide, but as a constitutional amendment requiring ratification by three-quarters of the states, it was also a product of the federal consensus.
Lincoln’s administration employed the double threat of emancipation and enlistment of slaves to relentlessly pressure loyal border states and occupied Confederate states into abolishing slavery. To be sure, Oakes’s narrative is strained by the fact that some of the reconstructed loyal legislatures in occupied states were largely created by the Union army. But by the time the Thirteenth Amendment was sent to the states for ratification in February 1865, six states had “voluntarily” abolished slavery, providing exactly the three-quarters majority (twenty-seven free states to nine slave states) necessary for ratification.
In our own era of divided and gridlocked government, Oakes’s Lincoln is a pragmatic paragon, patiently working within the Constitution’s structural limits to effect incremental but increasingly radical change—to “build back better,” as it were. At times, however, Oakes seems to downplay the full extent of those constraints and compromises, as well as Lincoln’s own commitment to them. Prior to the Civil War, Lincoln had stated that peacefully accomplishing slavery’s “ultimate extinction” while respecting the federal consensus would have taken a hundred years. On that timeline, the last remaining slave would have died in the mid-1950s, around the time of Brown v. Board of Education. Had post-emancipation history proceeded at the same pace, we would now be living at the nadir of Jim Crow, and Brown and the civil rights movement would still lie over two decades away.
More troubling, in 1858 Lincoln himself disclaimed any desire for “the social and political equality of the white and black races,” citing “physical differences” that forbade it. Those prejudices presumably shaped his support for the deportation of freed slaves from the United States through the first few years of his presidency. In attempting to contextualize Lincoln’s 1858 remarks, Oakes resorts to what even he concedes is “special pleading.” (Lincoln, Oakes writes with a defense lawyer’s sophistry, “said there was a ‘physical difference’ between Blacks and whites, but he didn’t say what the difference was” or “whether he believed” those differences justified white supremacy.)
Why not simply stress instead that over time Lincoln changed his mind, and with it, the Constitution? On the one hand, Oakes’s emphasis on the continuity and consistency of the antislavery project obscures Lincoln’s political and ideological complicity in the antebellum status quo; on the other hand, it also diminishes the achievements of his presidency insofar as it suggests that emancipation and abolition were but the working-out of an antislavery constitutionalism decades in the making. It may be true that, as Oakes claims, “the threat of the Antislavery Project” was enough to provoke secession and that “the Civil War would not have led to the destruction of slavery in the absence of the antislavery Constitution.” But if, as Lincoln himself admitted, the “peaceful extinction” of slavery was an impossibility, and abolition was only accomplished via a civil war that claimed hundreds of thousands of lives, can the antislavery Constitution truly be credited? And if not—if the Constitution of 1865 was fundamentally different from the Constitution of 1787—doesn’t Lincoln deserve a large measure of the credit? In short: did the Constitution make Lincoln, or did Lincoln remake the Constitution?
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As reflected in his title—The Broken Constitution: Abraham Lincoln, Slavery, and the Refounding of America—Feldman takes the latter view, tracing the origins of emancipation and abolition to a change in Lincoln’s political thought that eventually transformed the Constitution itself. In his 1838 address to the Young Men’s Lyceum of Springfield, the twenty-eight-year-old Lincoln had called for a “political religion of the nation,” premised on “a reverence for the constitution and laws” and demanding “religious observance” even of bad laws. Most strikingly, the future president warned against “men of ambition and talents” whose “towering genius” would demand Napoleon-like greatness “whether at the expense of emancipating slaves, or enslaving freemen.” Often cited in recent years as prophesying the resistible rise of Donald Trump, a man of neither talent nor genius (“stable” or otherwise), the Lyceum Address is better understood as Lincoln’s warning against his own presidency.
Hewing to the line of the antebellum Whig Party and its leaders Henry Clay and Daniel Webster, the Lyceum speech was a kind of pledge of allegiance to what Feldman calls the “compromise Constitution.” Recognizing that the Southern states would never have acceded to the Constitution without concessions to their peculiar institution, the Whigs championed a Constitution that was less a moral charter than, in Feldman’s words, “a blueprint for enabling the states to work together to preserve the union and expand it across the continent.” As a lawyer for railroad and canal companies in developing Illinois, Lincoln was himself the consummate product of that Constitution and the interconnected, integrated national economy that it fostered.
But as Lincoln recognized in his House Divided speech, the foundations of the compromise Constitution were ironically undermined by the very expansion it enabled. Upholding that compromise became increasingly untenable for antislavery Northerners as the Fugitive Slave Act and the Kansas-Nebraska Act forced them to, in Lincoln’s words, “crucify their feelings, in order to maintain their loyalty to the Constitution and the Union.” The impossibility of such prolonged self-crucifixion spurred the collapse of the compromising Whig Party and its succession by the far more sectional G.O.P., just as Lincoln’s election on the Republican ticket provoked Southern secession despite his own repeated pledge to honor the federal consensus.
Thus it was not a failure to compromise that caused the Civil War, as is sometimes asserted (notably by Shelby Foote in Ken Burns’s 1990 documentary), so much as it was the failure of a long series of compromises: the Compromise of 1850 that secured California’s admission as a free state in exchange for the passage of the Fugitive Slave Act; the Compromise Tariff of 1833 that ended the South Carolina nullification crisis; the Missouri Compromise of 1820 that preserved a balance between free and slave states; and, above all, the compromises ensconced in the Constitution itself. The “political religion” of the Lyceum Address, and the compromise Constitution that was its scripture, were thus the foremost of the outworn creeds that Lincoln dismissed in his 1862 annual message to Congress, defending the soon-to-be-signed Emancipation Proclamation. “The dogmas of the quiet past,” he declared, “are inadequate to the stormy present.”
“As our case is new,” Lincoln went on, “so we must think anew, and act anew.” What had made the case new, and demanded a correspondingly novel response, was nothing less than a breaking of the old Constitution. In a sharp departure from Oakes’s emphasis on continuity, Feldman stresses that “civil war is the very definition of a failed constitution.” In seceding from the Union, the Confederates had embraced what Lincoln called “the essence of anarchy.” The act of secession destroyed not only the principle of majority rule but the very compromises on which the Constitution had been founded. For the Constitution to survive at all, it had to countenance the forcible coercion of a disgruntled minority back into the national government.
And if secession “broke” the Constitution, it also empowered Lincoln himself to break it even further in order to honor his oath to preserve, protect, and defend it. No less an authority than Carl Schmitt, the Nazi jurist and theorist of sovereignty, deemed Lincoln a quintessential dictator who “suspended the Constitution in order to protect it.” As Feldman sets forth at length, the strongest evidence for Schmitt’s claim lay in Lincoln’s unprecedentedly broad construction of his war powers. Within a few weeks of the attack on Fort Sumter, Lincoln unilaterally suspended the writ of habeas corpus, paving the way for tens of thousands of citizens to be militarily detained without trial over the course of the war. Even after Chief Justice Roger Taney issued a judgment that the suspension violated the Constitution in Ex parte Merryman, Lincoln refused to budge. In fact, he doubled down: in the fall of 1862, facing resistance to a newly-implemented draft, Lincoln issued a proclamation authorizing the arrest and detention of anyone charged with “discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice” that benefited the Confederacy. Hundreds of antiwar newspapers were closed and their editors jailed. It was, Feldman concludes without hyperbole, the greatest suppression of free speech and expression in American history.
But Lincoln’s most transformative “breaking” of the Constitution, Feldman asserts, was the Emancipation Proclamation itself. Feldman foregrounds Lincoln’s hesitancy along the path to emancipation, noting that he had nearly vetoed an earlier “confiscation act” in the belief that its permanent seizure and emancipation of rebel-owned slaves was unconstitutional. In issuing the even more sweeping Emancipation Proclamation, Lincoln adopted what Feldman describes, in contrast to Oakes, as “a radically new theory of necessity in wartime” with no precedent in either international law or the U.S. Constitution. Once again, Lincoln’s action earned the rebuke of a Supreme Court justice, this time the retired Benjamin Curtis (ironically a dissenter in Dred Scott), who denounced Lincoln’s claims of wartime necessity as “military despotism.” And once again, Feldman quotes an unlikely European observer who recognized the gravity of what Lincoln had done. The Emancipation Proclamation, Karl Marx said, was “tantamount to the tearing up of the old American constitution.”
Marx meant it as a compliment. What Garrison had done as a symbolic gesture in 1854, Lincoln effectively did in 1863. And in the American civil religion that Lincoln formulated in his two greatest speeches, the Constitution’s death was also its resurrection. In what Feldman labels the “theology of emancipation,” the 1787 Constitution was the Old Testament, compromised by original sin. As formalized in the Thirteenth Amendment and cemented by the blood of the Civil War dead and of the martyred Lincoln himself (on Good Friday, no less), emancipation amounted to a “new birth of freedom” that shattered the old covenant and replaced it with the equivalent of the New Testament. In Feldman’s framing, the post-Reconstruction betrayal of this “moral Constitution” only bolsters the analogy: as Christianity was redeemed from institutional decline in the Reformation, so Lincoln’s legacy was recovered by the twentieth-century civil rights movement, also led by a man named “Martin Luther.” (Given that conclusion, one wonders if a trilogy is in the works, since Feldman’s Lincoln book is itself something of a sequel to his 2017 biography of James Madison, father of the Constitution.)
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Most Americans now revere not only Lincoln himself but the moral Constitution that he brought into being. Despite the recent historical critiques by Waldstreicher and Hannah-Jones, it’s hard to imagine anyone setting fire to the Constitution today. Instead, each side of the political spectrum has imbued it with its own dueling vision of the “higher law”—abortion rights or gun rights, marriage equality or religious freedom—and gone to court with it. In the Civil War, as Lincoln famously said, both sides read the same Bible and prayed to the same God. Now they read the same Constitution and appeal to the same Supreme Court.
Judicial review is a better means of social change than civil war—after all, what isn’t?—but it, too, comes at the expense of the democratic deliberation that Lincoln cherished. To make the Constitution a moral covenant runs the risk of making its black-robed interpreters high priests, mysteriously above and apart from the messy fray of popular government. (As if to symbolize its changing relation to the other branches of government, in Lincoln’s time the Supreme Court resided inside the Capitol; the Greek temple we know today wasn’t completed until 1935, a year in which the Court was busy striking down acts of Congress at a record clip.) And as a practical matter, it makes the Constitution’s effective meaning—and by extension, deeply-contested questions of social and economic policy—subject to the vagaries of an octogenarian’s health.
A moral Constitution rightly rejects what Garrison called “compromises with tyranny,” made by some Americans over the lives and bodies of others with no voice in the process. The danger lies in its potential to brand as immoral all compromise—witness the ongoing impasse over infrastructure and tax policy—and to outsource the hard work of self-government from legislative debate to executive and judicial fiat. Feldman doesn’t address the ironic possibility that the uncritical veneration of the moral Constitution may come partly at the expense of the government of, by, and for the people to which Lincoln originally tied it.
Far more important, though, is that Feldman’s book has the potential to change the terms of the ongoing debate over slavery and the Constitution. To be sure, inasmuch as it locates “amoral or even immoral” compromise with slavery at the document’s very heart, Feldman’s account of the Constitution of 1787 is largely consistent with Garrison and his contemporary heirs, and at odds with Oakes. But Feldman’s narrative is centered on the one thing palpably minimized on both sides of the debate in which it so richly intervenes: change.
Oakes and the 1619 Project—to say nothing of the Trump Administration’s bathetic 1776 Report—are the two poles of a Manichean originalism in which America’s beginning is also its end. On their shared logic, the Constitution must be either proslavery or antislavery; either it is (in Garrison’s words) the atrocious “source and parent” of structural racism that persists to the present day, or the glorious fountainhead of every subsequent rights movement. By contrast, to make rupture and rebirth the central fact of constitutional history is not only to restore to it what Lionel Trilling called a “lively sense of contingency and possibility”; it is to uphold its continued possibility in our own troubled time. Even as the constitutional crisis of 2020-21—an outgoing president’s refusal to acknowledge his legitimately elected successor, culminating in a violent insurrection in which the Confederate flag was marched through the Capitol—eerily echoes that of 1860-61, both the 1619 Project and its critics espouse a curiously ossified Constitution.
Such was not the case for Lincoln in December 1862, when he defended emancipation not despite but because of its novelty and even its unconstitutionality. As he proclaimed to Congress, “We must disenthrall ourselves, and then we shall save our country. Fellow-citizens, we cannot escape history…[We] will be remembered in spite of ourselves.” Lincoln’s emphasis on we was all that stood between him and self-contradiction. To emancipate the slaves was also to “disenthrall ourselves” from “the dogmas of the quiet past,” and vice versa. To escape from history was, in the end, to leave no escape from making history.
Posted on 4 February 2021
GEOFFREY R. KIRSCH is a Ph.D. candidate in the Harvard University Department of English, where he focuses on 19th and early 20th century American literature and its intersections with legal and political history. His writing has appeared in American Literary Realism; Law, Culture and the Humanities; the Los Angeles Review of Books; The New England Quarterly; and the Real Property, Trust and Estate Law Journal. He previously earned a B.A. from Dartmouth College and a J.D. from Harvard Law School, and practiced law in Boston before returning to academia.
