Wilentz: New Book Says Jefferson Davis was Right About the Constitution. What About Lincoln?

THE BROKEN CONSTITUTION
Lincoln, Slavery, and the Refounding of America
By Noah Feldman

Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.”

Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

On both points, though, Feldman contends that Davis was right and Lincoln was wrong. Moreover, Feldman argues, despite Lincoln’s professed fidelity to the framers’ work, he was the one who finally broke the Constitution during the Civil War by turning the presidency into a quasi dictatorship, much as his Confederate and Copperhead enemies alleged he did. Only then, Feldman concludes, paradoxically, could America redeem its claims to nobility by purging the original sin of slavery, refounding itself by embracing what he calls a new, expansive “moral Constitution.”

Feldman’s reliance on Jefferson Davis to frame a book on Abraham Lincoln thus makes perfect sense: Aside from the slaveholders’ insistence on the ethical legitimacy of slavery, Feldman’s constitutional analysis consistently backs their arguments over Lincoln’s. Less than perfect, unfortunately, are the renderings of American history he offers to support his surprising thesis.

A professor at Harvard Law School and a prolific scholar and commentator on current affairs, Feldman is well equipped to assess Lincoln’s constitutional record. A lucid, provocative stylist and an expert in fields ranging from Islamic politics to the American separation of church and state, he is widely known for an illuminating political biography of James Madison. “The Broken Constitution” can be read as a sequel to that book, connecting the nation’s founding and early years to what Lincoln called the “astounding” outcome of the Civil War. Indeed, Feldman roots his interpretation of Lincoln and slavery in what he now calls the “compromise Constitution” that Madison and the other framers hammered out — the Constitution, he says, that Lincoln would eventually break.

From the start, however, Feldman’s depiction of the Constitution’s connection to slavery is questionable. Although he calls it the “compromise Constitution,” Feldman’s Constitution was almost seamlessly pro-slavery. The famous negotiations that offered concessions to the slaveholders come across more like abject submission. Feldman ignores the antislavery currents inside the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks how much the Constitution’s provision authorizing abolition of U.S. participation in the Atlantic slave trade was an antislavery victory over the lower South, which tried to block it as a dealbreaker — a measure that, even when weakened by a maneuver Madison bemoaned, was the first serious blow ever against the trade undertaken in the name of a national government. Feldman fails to see the Constitution as an ambiguous document that offered protections to the slaveholders but also contained considerable antislavery potential, sufficient for thoughtful if wishful Northern abolitionists like Benjamin Rush to hail it as the death knell of slavery.