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11/05/2021

Prof. Noah Feldman on Lincoln’s First Inaugural Address
David Weisberg

Prof. Ramsey has written a post concerning Noah Feldman’s new book, “The Broken Constitution,” and Feldman’s derivative NYTimes op-ed, “This is the Story of How Lincoln Broke the U.S. Constitution.”  The post includes comments from Prof. Josh Blackman and Prof. Ramsey himself, all of which are somewhat skeptical about Prof. Feldman’s allegation that, in his first 18 months as president, “Lincoln violated the Constitution as it was then broadly understood three separate times.”

I’m not going to join that debate, except to say that I share the skepticism expressed by Profs. Blackman and Ramsey.  I’m writing instead to correct what is, to my mind, an astounding misconception advanced by Prof. Feldman concerning Lincoln’s first inaugural address.  In his op-ed, Prof. Feldman writes:

[T]he month before [the Civil War began], in his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” he said, vowing never to defy what was “plainly written” in the Constitution. “I believe I have no lawful right to do so, and I have no inclination to do so.”

Prof. Feldman accurately quotes part of Lincoln’s first inaugural address, but in construing that part, or any part, of the address as Lincoln’s promise “to preserve slavery as a constitutionally mandated permanent reality,” he is entirely mistaken on two counts.

First, no one ever believed that slavery was “mandated” by the U.S. Constitution.  Lincoln never said any such thing in an inaugural address or anywhere else.  Moreover, in the interval between the Constitution’s adoption and 1860, numerous States (including Lincoln’s own Illinois) had modified their constitutions, which had formerly permitted slavery, to prohibit it.  No one seriously contended that the U.S. Constitution barred any State from prohibiting slavery within its own borders.  It should be obvious that there is a difference between the Constitution permitting or allowing States to make slavery lawful and the Constitution mandating or requiring States to make slavery lawful.   

Lincoln certainly did argue that, if the logic of the Dred Scott decision were taken to its limit, the States would be prohibited by the U.S. Constitution from barring slavery within their respective borders—but this was a reductio ad absurdum  argument.  That is, it was understood to demonstrate the falsity of the Dred Scott premises; it most certainly did not express any belief on Lincoln’s part that the U.S. Constitution mandated slavery.

Secondly, whatever views others may have held, it is certainly not true that Lincoln conceived of slavery as a “permanent reality.”  The words from Lincoln’s first inaugural address quoted by Prof. Feldman do not say anything about slavery being “permanent,” nor does any other part of that address.  But on numerous occasions prior to the first inaugural, Lincoln made his view perfectly clear.  For example, on March 1, 1859 he said this in Chicago:

I do not wish to be misunderstood upon this subject of slavery in this country.  I suppose it may long exist, and perhaps the best way for it to come to an end peaceably is for it to exist for a length of time.  But I say that the spread and strengthening and perpetuation of it is an entirely different proposition.  There we should in every way resist it as a wrong, treating it as a wrong, with the fixed idea that it must and will come to an end.

This directly contradicts the notion that Lincoln ever thought that slavery should or would be permanent.  Lincoln’s contributions to the Lincoln/Douglas debates also are filled with exhortations such as this:

All I have asked or desired anywhere is that [slavery] should be placed back again upon the basis that the fathers of our government originally placed it upon.  I have no doubt that it would become extinct, for all time to come, if we but re-adopted the policy of the fathers by restricting it to the limits it has already covered—restricting it from the new Territories. 

(Third Debate, Sept. 15, 1858, Lincoln’s Reply, emphasis in original.)

In sum, Prof. Feldman is entirely incorrect in asserting that Lincoln, in his first inaugural address or in any other speech or writing, “promised to preserve slavery as a constitutionally mandated permanent reality.”