Lincoln's Antislavery Constitutionalism

Abraham Lincoln stands prominently in our current national reckoning with race and American history. Noah Feldman, a professor of law at Harvard University, enters this conversation with his new book on Lincoln’s entanglement with slavery and the Constitution. He derives his title from a speech delivered in 1850 by Senator Jefferson Davis, who lambasted antislavery “fanaticism and ignorance” for producing a “broken constitution.” Feldman channels Davis’s logic to argue that the Constitution’s framers forged the Union upon the charter’s Three-Fifths Clause, the fugitive slave provision, and the right of states to manage domestic institutions. To profit from a powerful, expansionist nation mandated adherence to what Feldman calls “the compromise Constitution’s” authorization of slavery.

Lincoln functions in The Broken Constitution at first as an unmoving American complicit in upholding a slaveholding republic. He is ambivalent to equity and beholden to the myths of 1776, satisfied to compromise with injustice to ensure national greatness. But Feldman implies how we, like his Lincoln, can shed the tainted, tired dogmas of the founding, the Union, and the Constitution to order a present and more perfect future untethered to history. And yet, Feldman hardly acknowledges Lincoln as he was: a deliberate antislavery constitutionalist who embodied the Republican Party’s guiding philosophy of “freedom national, slavery sectional.” In its aim of demythologizing Lincoln, The Broken Constitution does not understand Lincoln or even how Lincoln understood himself.

Feldman frames Lincoln as a moderate nationalist who, like his political hero Henry Clay, devoted his public life to an “understanding [of] the Constitution as a compromise over slavery—and saw the compromise as desirable, not sinful.” Lincoln had indeed maintained that the Constitution prevented the federal government from interfering with slavery in the southern states. And he pledged to enforce the charter’s slaveholding provisions. To threaten the “compromise Constitution,” Feldman suggests, was to threaten an otherwise stable Union of free and slave states. Thus, “the Lincoln who was elected in 1860 and inaugurated in 1861 [disregarded] the Constitution as an antislavery document.” 

Disunion and civil war confronted Lincoln’s commitment to upholding the “compromise Constitution.” To contest the Confederate rebellion, Lincoln, according to Feldman, “transformed himself into a constitutional dictator” when he suppressed civil liberties and suspended the writ of habeas corpus. He employed unilateral military force against the recalcitrant southern states that broke their “contractual agreement” with the federal Union. He blazed an unprecedented and perhaps unlawful trail toward abolition, shattering the very Constitution which he had long vowed to preserve. “Going to war to coerce the wayward states to return broke the principle of the consent of the governed,” Feldman observes. But in breaking the Constitution, Lincoln also severed the United States’ founding bond with slavery. Under Lincoln’s extralegal stewardship, “The Constitution broke and was broken. It did not recover. It was remade in the aftermath of the war into something new and different.” The Union of 1787 died, replaced in 1865 with a new Constitution that “would not be a compromise with injustice, but the embodiment of a higher, moral law.”

Feldman paints a strange portrait of Lincoln’s personal, political, and wartime transformation. We watch as Lincoln discards his expedience toward slavery to christen himself within the very nation that he broke, baptized, and resurrected. Only American blood could cleanse Lincoln’s once-sullied alliance with the Founders’ slaveholding Union. The implication is subtle if not cynical: the first American republic had so fixed its cornerstone on a foundation of human bondage that Lincoln, once a political moderate skeptical of autocracy, had to metastasize into a dictator to redeem the nation and even himself from “the original Constitution [which] was not a moral ideal.”

Abraham Lincoln would not recognize his portrayal in The Broken Constitution. As he affirmed in his First Inaugural Address, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” His pledge, however, was not based on a considered faith in “the compromise Constitution.” In contrast to abolitionist William Lloyd Garrison and slaveholder Jefferson Davis, Lincoln did not regard the Constitution as a positive concession to slavery. Nor did Lincoln recognize that “the true and ultimate value of the union was its capacity to enable the United States to become a continental empire.”

The Founders compromised on slavery to obtain the Constitution and establish the Union, Lincoln opined, because the institution predated the American political regime. But he likewise believed that the national charter inaugurated explicit procedures for a free citizenry to secure and guard the liberties outlined in the Declaration of Independence. “It may be argued that there are certain conditions that make necessities and impose them upon us,” because, Lincoln granted in 1858, the Founders’ negotiation on slavery contained a broader purpose: “we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties. Let that charter stand as our standard.”

Lincoln understood the Constitution as an ethical instrument that organized a Union of individual liberty and political equality. The charter, he alleged, contested slavery from its inception. Though the Constitution protected the right of states to administer domestic institutions, it also guarded the self-governing right of citizens to create free states through gradual emancipation. The formation of an antislavery North reoriented slavery’s relationship to government and challenged the ancient assumption of “property in man.” For Lincoln, slavery existed only as a creature of state law, never sanctioned by positive, constitutional law. “The framers of the Constitution” did not introduce slavery into the national domain, he averred, and “in making the Government they left this institution with many clear marks of disapprobation upon it.”

As he outlined in 1854, the Founders prohibited human bondage in the Northwest Territory; they refused explicit sanction of slavery in the Constitution by referring to the enslaved not as “slaves” or “property” but as “persons”; they granted Congress the ability to ban the international slave trade; they limited slaveholding congressional representation to three-fifths of the enslaved population rather than the entire population; and they insisted that slavery could not expand into federal territories. In a powerful analogy that Feldman would have done well to engage, Lincoln deemed that slavery

is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time. Less than this our fathers could not do; and [more] they would not do. Necessity drove them so far, and farther, they would not go. . . . They hedged and hemmed it in to the narrowest limits of necessity (emphasis added)

Lincoln later concluded “that the framers of the Constitution intended and expected the ultimate extinction of that institution.” Then, once “slavery had passed from among us[,] there should be nothing on the face of the great charter of liberty suggesting that such a thing as negro slavery had ever existed among us.”

Lincoln thus adhered to a vibrant antislavery constitutionalism, which Feldman largely ignores. Contrary to slaveholders’ “idea that there could be property in man,” Lincoln argued, the Constitution codified the inviolable right to individual self-ownership proclaimed in the Declaration of Independence. The Constitution obligated Congress to restrict human bondage from moving anywhere within the national domain, thereby sheltering antislavery coalitions that coaxed slaveholding states to abolish the institution through popular consent. But by the 1850s, Lincoln bemoaned “that there is no peaceful extinction of slavery in prospect for us.” Slaveholders and their Democratic accomplices had rewritten the American founding to assume an explicit constitutional right to slavery (a position Feldman accepts in his premise of the “compromise Constitution”) and insisted on its unchecked continental spread. Contesting the Supreme Court’s notorious holding in Dred Scott (1857), which effectively nationalized slavery and imagined a constitutional right to human property, Lincoln maintained that the founding documents “set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence.” To do otherwise rejected “the central idea” of the founding: “the equality of all men.”

Such remarks betray Feldman’s odd claim that “Lincoln’s Republican stance still had no credible account of how the extinction of slavery could practically be accomplished so long as the compromise Constitution remained in place.” In a fundamental source of his political thought that appears nowhere in Feldman’s analysis, Lincoln articulated in 1861 how “the Union, and the Constitution, are the picture of silver” that enhance and safeguard the “‘apple of gold’” proclaimed in the Declaration. “The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture. So let us act, that neither picture, or apple, shall ever be bruised or broken.” The Constitution provided the legitimate means and the legal process to sustain the “apple of gold.” Only the Constitution and the Union could fulfill the Declaration’s “principle of ‘Liberty to all.’” Lincoln believed that the Constitution would break when a free citizenry severed the charter’s link to the Declaration. This occurred in 1860-61 when southern states split the Union, spurned the Constitution, and built a new slaveholding nation that rejected the Declaration.

Lincoln had used the slaveholders’ rebellion to affirm—not to break—what he considered the Constitution’s innate spirit: an antislavery document consistent with the Declaration of Independence.

Feldman interprets Lincoln’s response to the secession crisis in inadvertent Lost Cause echoes. The president’s use of military force to “coerce” the recalcitrant states back into the Union apparently violated longstanding constitutional doctrine.  As a “dictator,” he “refused to accept” a fundamental principle of constitutional government when he challenged the ostensible right of self-determination through secession. But the question of disunion had less to do with majority prerogatives versus minority consent, and more to do with the obligation of a disgruntled political faction to “acquiesce” to the democratic process. Popular elections depend on all participants consenting to the terms of democracy before the first votes are cast. As the duly elected president, Lincoln possessed a constitutional obligation to defend his electoral legitimacy from militant secessionists who broke the constitutional order.

To combat the rebellion, Lincoln adopted a breathtaking corpus of executive war powers in regulating dissent and curtailing civil liberties. That “ours is a case of Rebellion,” the Constitution permitted temporary restrictions on civil liberties during times of revolt so that the charter could endure. Lincoln reasoned that the Constitution did not delegate either to Congress or the President the power to suspend habeas corpus because an insurrection against the instrument itself mandated a crisis response.

But Lincoln placed distinct limits on even his own executive authority. As he declared on the eve of his 1861 inauguration, the Constitution guarded against dictatorship: “should my administration prove to be a very wicked one, or what is more probable, a very foolish one, if you, the PEOPLE, are but true to yourselves and to the Constitution, there is but little harm I can do, thank God!” The Democratic Party remained an active political antagonist. Lincoln beseeched popular judgment on the conduct of the war, the administration’s policies, and the question of executive dictatorship. Congressional oversight and regular midterm elections—and especially the presidential election of 1864—testified to the endurance of constitutional democracy.

Feldman links Lincoln’s presidential power to his evolution on abolition. He argues that Lincoln learned that “the compromise Constitution that he had set out to defend as the war began was not itself inherently morally defensible.” It made little sense to curtail civil liberties in an amoral war to maintain a slaveholding nation. “As [Lincoln] saw it,” according to Feldman, “the preservation of slavery was the condition for the creation and maintenance of the union. Union came first; freedom for African Americans came second. Emancipation represented a total reversal of this hierarchy of values.” Feldman rightly observes that Lincoln at first vowed to win the war and suppress the rebellion, even if the prospect restored slavery in the federal Union.

However, Lincoln had long held emancipation and Union as complementary concepts. The question was how to occasion the former within the latter. Lincoln had insisted that only the states could abolish slavery based on the consent of the governed. But the unimaginable scale of civil war, the loyal Border States’ rejection of gradual emancipation incentives, an escalating humanitarian crisis among enslaved refugees, and the slaveholders’ unholy crusade against free political institutions shifted Lincoln’s relationship to emancipation. Disloyal white southerners relinquished their constitutional privileges and protections when they rebelled against the federal government. The international laws of war held emancipation as a rational, legal, and pragmatic means to prosecute the rebellion.

Regardless of how or when it occurred, abolition had to be approved by popular consent, a process that depended on the Constitution and Union. The slaveholders’ brutal rebellion fueled a popular mandate to embed emancipation in the great charter, an initiative that drove Lincoln’s reelection in 1864. “It is the voice of the people now for the first time heard upon the question,” Lincoln informed Congress. “In a great national crisis like ours unanimity of action among those seeking a common end is very desirable—almost indispensable. . . . In this case the common end is the maintenance of the Union, and among the means to secure that end such will, through the election, is most dearly declared in favor of [the Thirteenth] amendment.” Abolition eliminated deceptive claims of a constitutional right to “property in man” and relieved the Union from the only source of its dissolution.

The Constitution persisted as the people’s governing instrument. The amendment process organized a national antislavery consensus through popular deliberation and ratification within the states. When he hailed the Thirteenth Amendment as the “King’s cure for all the evils,” Lincoln credited the Constitution for eliminating the central cause of disunion and civil war. He had used the slaveholders’ rebellion to affirm—not to break—what he considered the Constitution’s innate spirit: an antislavery document consistent with the Declaration of Independence.