Noah Feldman testifying before Congress about the dangers
Harvard constitutional law professor Noah Feldman writes in a New York Times opinion that, more than Madison, Hamilton and the other Founders at the Constitutional Convention, Abe Lincoln wrote what is now the modern constitution. To do this, Lincoln broke the Constitution three times, the last being a final break with the complex, often crippling and ambiguous political and moral compromises the original was based on. Arguably, the original Constitution was deeply flawed and not workable.
This opinion piece adds to the historical context for my recent belief that the US Civil War has not really ended in some important ways. In particular, the 14th Reconstruction era Amendment with its due process and equal protection clauses are under attack by the modern radical right. The same holds for the establishment clause of the 1st Amendment. In this essay, one can see some of the origins of core radical right political ideology and legal theory on constitutional interpretation.
Before the Civil War, Lincoln was not opposed to slavery where it existed. He wrote “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists.” Lincoln claimed that he would never to defy what was “plainly written” in the original Constitution, claiming that “I believe I have no lawful right to do so, and I have no inclination to do so.” Then the war came.
Feldman writes:
But I’m making a stronger argument. What has become clear to me is that even before the passage of those Reconstruction amendments — indeed, as a kind of precondition for them — Lincoln fatally injured the Constitution of 1787. He consciously and repeatedly violated core elements of that Constitution as they had been understood by nearly all Americans of the time, himself included.
Through those acts of destruction, Lincoln effectively broke the Constitution of 1787, paving the way for something very different to replace it. What began as a messy, pragmatic compromise necessary to hold the young country together was reborn as an aspirational blueprint for a nation based on the principle of equal liberty for all.
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Note: In several discussions here (e.g., this and this), I have pointed out the core Christian nationalist belief in unequal liberty for all, including hostility to democratic elections. Wealthy White heterosexual male Christians are destined by God to rule society, commerce and government. That group deserves wealth, power and control in view of being the most authoritative and moral of all based on their God-given wealth, race, gender and moral superiority. Christian nationalists want to be able to openly but legally discriminate against other groups based on sex, race, sexual orientation, religion or lack thereof, and political ideology. There is nothing new about this, despite diligent, mostly successful, Christian nationalist tactics to hide and deny this fact. The evidence for this is undeniable and apparently not in dispute among experts. As one would expect, this is strenuously disputed by Christian nationalists and their massive propaganda machine.]
Today, when the United States is engaged in a national reckoning about the legacies of slavery and institutional racism, the story of Lincoln’s breaking of the Constitution of 1787 is instructive. It teaches us not only that the original Constitution was deeply compromised, morally and functionally, by its enshrining of slavery, but also that the original Constitution was shattered, remade and supplanted by a project genuinely worthy of reverence.
But in the 18 months that followed, Lincoln violated the Constitution as it was then broadly understood three separate times.
First, he waged war on the Confederacy. He did this even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that neither the president nor Congress had the lawful authority to coerce the citizens of seceding states to stay in the Union without their democratic consent. Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based.
Second, Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.
Lincoln justified both of these constitutional violations by a doubtful theory of wartime necessity: that as chief executive and commander in chief, he possessed the inherent authority to use whatever means necessary to preserve the Union.
Third, and most fatefully, Lincoln came to believe that he also possessed the power to proclaim an end to slavery in the Southern states. When he finally did so, issuing the Emancipation Proclamation in January 1863, he eliminated any possibility of returning to the compromise Constitution as it had existed before the war.
As Lincoln explained in a letter to Senator Orville Browning of Illinois in September 1861, emancipation would be “itself the surrender of the government” he was trying to save. “Can it be pretended that it is any longer the government of the U.S. — any government of Constitution and laws,” Lincoln asked, if a general or a president were able to “make permanent rules of property by proclamation?”
In the end, Lincoln’s decision to issue the Emancipation Proclamation turned on his realization that the war could not be won as he had originally hoped — namely, by inducing the Southern states to rejoin the Union on compromise terms similar to the status quo before the war. To proclaim the enslaved people of the South as emancipated was to announce that there was no going back. The original compromise Constitution would no longer be on offer, even if the South gave up and rejoined the Union.
.... the 14th and 15th Amendments, enacted after Lincoln’s death in April 1865, formally secured the equal protection of the laws and enfranchised African American men.
But Lincoln had already transformed the Constitution from a political compromise into a platform for defending moral principles by invoking its authority to end slavery.
Indeed, even before Lincoln broke the Constitution, some of the most sophisticated thinkers about the nature of the Constitution were attuned to the complexities of the question.
Frederick Douglass, for example, began his career as an abolitionist in the late 1830s by rejecting the Constitution as immoral. Over time, however, his views changed. In 1850, he wrote that “liberty and slavery — opposite as heaven and hell — are both in the Constitution.” The Constitution, he concluded, was “at war with itself.”
Even this would turn out to be a transitional position for Douglass. In 1851, he declared that he now believed that slavery “never was lawful, and never can be made so.” (emphasis added)
Do you see what I see?
In Feldman’s account of what Lincoln did and what it meant, connections between the old Civil War disputes and modern radical right politics and ideology jump right out. But is it reasonable to believe that interpretation? He is an expert. In essence, he argues that the original Constitution had to be broken before 14th Amendment’s due process and equal protection clauses could come into being. Some on the radical right argue today that the South never consented to the three Reconstruction Amendments (13th, 14th and 15th) an thus they are null and void.[1]
My assertion is that the roots of modern White Christian nationalism and radical right ideology extend at least back to the Civil War, arguably back to the original Constitution. I got an inkling of this origins story from former US Attorney General
Edward Levy’s 1949 book,
Introduction to Legal Reasoning, where some of the roots of modern right wing radicalism seemed to me to be there. I could see it, but maybe that perception was more self-constructed illusion based on motivated reasoning than fact-based reality. I'm not an expert and don’t know all the facts.
Questions:
1. Is Feldman merely spouting fluffy academic theory from his comfy Ivy League tower, or does what he argue make sense and is thus plausible, maybe even convincing? Did Lincoln really transform the Constitution from an arguably flawed political compromise into a platform for defending moral principles by invoking it as an authority to end slavery?
2. Is it at least plausible to link modern authoritarian, radical right Christian nationalist ideology with the modern Republican Party and its politics, policies and dark free speech tactics? To me it is an excellent hand in correct size glove fit.
3. What is one to think of Frederick Douglass’ assertion that slavery “never was lawful, and never can be made so”? Is that the top of a slippery slope starting from equal liberty for all and descending into to some form of autocratic or plutocratic White Christian authoritarianism such as an American version of fascist theocracy? Is American governance and society already sliding down that slope?
Footnote:
1. Feldman notes that Lincoln’s “moral” Constitution was thwarted on multiple occasions. For example, soon after the Reconstruction Amendments were ratified, imposition of segregation and disenfranchisement on Black Southerners essentially nullified them. That was not rectified until the 1954 Brown v. Board of Education and the 1960s civil rights movement before the goal of Lincoln’s new Constitution started to really take hold on American society. I have pointed out multiple times that the 1954 Brown v. Board decision to desegregate public schools enraged Southern White elites, arguably marking the start of the modern era radical right political juggernaut, with its heavy reliance on dark free speech tactics.
There are two important lines of objection to
the amendments’ adoption. One is that some or all of the southern state governments that participated in ratifying them were not legally competent to do so because of the irregular fashion in which those governments had been created. The other objection is that some or all of the southern ratifications were extorted from the states through unlawful federal threats.
I maintain that the proposal and ratification of the Reconstruction amendments was legally effective under Article V. The words “legally effective” are chosen carefully, for the argument is formalistic: it does not deny that during Reconstruction Article V badly served its purpose of balancing the federal and national principles.
This is some of the basis for my belief that in some ways, some aspects of the US Civil War are not settled yet, and maybe never will be. The basis for the fight is right there, out in the open.
