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New Book: "The Broken Constitution" by Noah Feldman (with Comments from Josh Blackman) (and me) (and Andrew Hyman)
Michael Ramsey

Recently published, by Noah Feldman (Harvard): The Broken Constitution: Lincoln, Slavery, and the Refounding of America (Farrar, Straus and Giroux, 2021).  Here is the book description from Amazon:

Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution―a system he regarded as the “last best hope of mankind.” But how did Lincoln understand the Constitution?

In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States’ founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution’s place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact―a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text―a transcendent statement of the nation’s highest ideals.

The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them―and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln’s Republican rivals and Secessionist ideologues.

Professor Feldman summarizes the argument in the New York Times: This Is the Story of How Lincoln Broke the U.S. Constitution (concluding that "Lincoln violated the Constitution as it was then broadly understood three separate times."

At Volokh Conspiracy, Josh Blackman is skeptical.

First, Feldman writes that Lincoln "waged war on the Confederacy." I'm sure his book explains that Lincoln argued there was no war--merely a suppression of insurrection. But that fact doesn't make it into the essay. This inconvenient truth doesn't advance Feldman's narrative that Lincoln "broke[] and remade" the Constitution.

Second, Feldman cites the Emancipation Proclamation as another unconstitutional act. On balance, I agree with Justice Curtis that the Proclamation was unconstitutional. But Lincoln offered a cogent defense of the Proclamation as a wartime measure to appropriate confederate property. Again, Lincoln did not think he was violating the Constitution.

Third, Feldman cites the suspension of habeas corpus:

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.

No, no, no. Lincoln did not ignore Taney. Read Seth Barrett Tillman's article, Ex Parte Merryman: Myth, History, and Scholarship. At this point, the failure to engage with Seth's work is academic malpractice. Feldman is not alone. Many prominent scholars continue to repeat this shibboleth.

I agree with the skepticism, only more so.

(1) In the Prize Cases (1863), the Supreme Court rejected the claim that the President's war against the Confederacy was unconstitutional.  Although the opinion isn't a model of clarity, it appears to rest on two grounds, both of which seem right to me.  First, the Confederacy initiated a state of war by attacking Fort Sumter and other federal institutions in the South.  Once a state of war is initiated by an enemy, the President has constitutional power to fight it, as part of the executive power and commander-in-chief power.  True, this is not an obvious reading of the Constitution's original meaning, but I have argued it is correct (see The President's Power to Respond to Attacks), and more importantly Hamilton argued that it is correct (in response to President Jefferson's dealings with Tripoli) (see the article linked above, Part II.C.).  Second, Lincoln had delegated power to fight the war under the Insurrection Act of 1807, which empowered the President to use federal troops to suppress insurrection and rebellion.  In any event, the main constitutional objection to Lincoln's warfighting is that it was unilateral, but once Congress reassembled it mostly ratified Lincoln's prior  actions.

(2) As to the Emancipation Proclamation, again I agree it's a somewhat close question but I think Lincoln had the better argument.  The President's war power includes power to seize or destroy enemy property (especially in a conflict approved by Congress, which the Civil War was by 1863).  If it had been a foreign war, the President's power over enemy property would be obvious.  The fact that the property was owned by U.S. citizens (albeit citizens in rebellious areas) makes it more difficult, but the Court in the Prize Cases concluded that the war should be treated (for purposes of property seizures) as a foreign war.  It follows that the President had power over enemy property in the Confederacy, including slaves.

(3) I agree with Professor Feldman that unilateral executive suspension of habeas corpus is unconstitutional under the Constitution's original meaning and was widely understood to be unconstitutional in 1861.  But I agree with Professor Blackman that Professor Tillman's scholarship makes the Lincoln/Taney episode substantially more complicated than it is often presented.

In sum, these are hard constitutional questions, made especially hard by the project of trying to fit a civil war into the Constitution's provisions for foreign war. Contra Professor Feldman, the Constitution was not "broadly understood" to operate in particular ways in this context because the context hadn't previously arisen.  On balance I think Lincoln's arguments -- at least with respect to waging war and the Proclamation -- were correct; at least, they were plausible.  As Professor Blackman says, Lincoln did not think he was violating (much less "breaking") the Constitution.

(Disclaimer: I haven't read the book yet, only the NYT article, so it may be that the arguments in the book are more nuanced.  But the central claims of the book as described in the article and book summary don't seem very nuanced.)

FURTHER THOUGHT:  I highly recommend Lincoln's Constitution by Daniel Farber, although I don't agree with all of it.

ANDREW HYMAN ADDS: Regarding habeas corpus, Lincoln himself did not claim that his action in the Merryman case was okay because Taney never gave him a direct order.  Instead, Lincoln’s justification was that Congress was not in session. Lincoln’s view was echoed and elaborated by Sidney George Fisher in his 1862 treatise on the Constitution:

The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.

This seems right.