Is the Constitution Broken beyond Repair?
The Broken Constitution: Lincoln, Slavery, and the Refounding of America
Farrar, Straus and Giroux, 2021, 368 pp.
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
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