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11/08/2021

Sean Wilentz on Noah Feldman on Lincoln and the Constitution
Michael Ramsey

In the New York Times, Sean Wilentz reviews (harshly) The Broken Constitution: Lincoln, Slavery, and the Refounding of America by Noah Feldman:  Was the Constitution Pro-Slavery? Jefferson Davis Thought So.  Lincoln Did Not.

Via Josh Blackman at Volokh Conspiracy, who comments

In the New York TimesProfessor Sean Wilentz (Princeton) reviews Feldman's new Lincoln book, titled "The Broken Constitution." Wilentz confirmed my suspicions about the book: in order to support the narrative that Lincoln broke the Constitution, Feldman would have to adopt the pro-Confederacy understanding of the Constitution. You should read the entire review, but this passage sums things up well:

The framers, [Jefferson] 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.