The Broken Constitution: Lincoln, Slavery, and the Refounding of America

by Noah Feldman

Overview

A New York Times Book Review Editors' Choice

An innovative account of Abraham Lincoln, constitutional thinker and doer

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.

Includes 8 Pages of Black-and-White Illustrations

Product Details

ISBN-13:	9780374116644
Publisher:	Farrar, Straus and Giroux
Publication date:	11/02/2021
Pages:	384
Sales rank:	537,986
Product dimensions:	5.80(w) x 8.90(h) x 1.30(d)

About the Author

Noah Feldman is the Felix Frankfurter Professor of Law at Harvard Law School, a columnist for Bloomberg View, and host of Pushkin Industry’s Deep Background podcast. He is the author of ten books, including The Three Lives of James Madison and Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.

Table of Contents

Introduction
1. The Compromise Constitution
2. The Breaking Constitution
3. The Choice of War
4. Political Prisoners
5. Emancipation and Morals
Conclusion

Notes
Acknowledgments
Index

Editorial Reviews

10/11/2021

Harvard law professor Feldman (The Arab Winter) analyzes in this probing study how Abraham Lincoln, in justifying the Civil War and signing the Emancipation Proclamation, transformed the Constitution from “a compromise that preserved slavery” to a “moral compact—a higher law that embodies an ideal form of government.” Even as he wrestled with his own contradictory beliefs that civil war was necessary to preserve the Union, and that slavery “was enshrined in the Constitution,” Feldman writes, Lincoln embarked on a mission to convince his Cabinet and Congress that emancipating enslaved human beings would not shatter the Constitution. His efforts to decouple the Constitution from slavery began with war measures that suspended habeas corpus, permitted the enlistment of African Americans in state militias, and prohibited escaped slaves from being returned to their Confederate owners. Feldman also examines how Lincoln crafted public pronouncements such as the Gettysburg Address with a view toward preparing whites in the North and slaveholders in the Confederacy for emancipation, and discusses how 20th-century leaders including Martin Luther King Jr. furthered Lincoln’s project of redeeming the country from its original sin. Though the wealth of detail on Lincoln’s life and travels bogs down the narrative somewhat, this is an astute and eye-opening look at an underexamined aspect of the quest to end slavery. Agent: Andrew Gallo, ICM Partners. (Nov.)

Publishers Weekly

"[A] bold, perceptive offering . . . Thought-provoking." —Elizabeth R. Varon, The Washington Post

"Feldman’s book has the potential to change the terms of the ongoing debate over slavery and the Constitution . . . To make rupture and rebirth the central fact of constitutional history is not only to restore to it what Lionel Trilling called a 'lively sense of contingency and possibility'; it is to uphold its continued possibility in our own troubled time." —Geoffrey R. Kirsch, The New Rambler

"[A] magnificent book . . . Feldman skillfully reconciles his expertise as a law professor and his skill as a popular writer, rendering a careful dissection of old legal doctrine accessible and exciting. The reader thinks alongside the great legal minds of the 19th century and feels Lincoln enduring the opposing and sharp pulls of law and politics . . . It is a testament to Feldman’s skills as a scholar and public intellectual that he can make accessible the breaking and remaking of legal norms through vibrant writing and their organization in a rich and novel theoretical framework . . . Feldman’s book will be of interest to scholars, students and the general public." —Joshua Braver, Lawfare

"Feldman offers an elucidating look into Lincoln’s incremental thinking, neatly demonstrating how he articulated the “before” and “after” Constitution in the Gettysburg Address as a compromise versus a moral document, using an Old Testament/New Testament analogy that embodied equality for all promised in the Declaration of Independence. Feldman never bogs down in legalese, rendering a scholarly topic accessible for general readers. A marvelously intricate work on Lincoln’s writings and thoughts, which continue to offer fodder for historians." —Kirkus Reviews (starred review)

"Vignettes about slavery, the negotiators of the compromises, abolitionists, the Civil War, and beyond offer context for Feldman’s innovative legal analysis. In describing interactions among political groups, voting rights, diverse views of abolitionists, suspending habeas corpus, and censorship, Feldman offers insights strikingly relevant to today’s politics.” —John Rowen, Booklist

"[A] probing study . . . An astute and eye-opening look at an underexamined aspect of the quest to end slavery.” —Publishers Weekly

“With insight and a talent for illumination, Noah Feldman explores our greatest president’s complicated relationship with a document he revered—and changed forever.” —Jon Meacham, author of Thomas Jefferson, American Lion, and His Truth Is Marching On

“Is there really a need for yet another book on Abraham Lincoln? The answer is yes, at least with regard to Noah Feldman’s stunning examination of Lincoln and ‘the broken Constitution.’ It truly needs to be read by anyone interested not only in our tangled and tragic constitutional history but also in the continuing problems that face us today. He conveys in lucid prose the best existing overview of the constitutional issues that Lincoln (and the country) faced with regard to slavery in general and the conduct of the ‘war to preserve the union’ in particular. Whether one is a general reader or a professional academic, this is a book demanding to be read and discussed.” —Sanford Levinson, Centennial Chair at the University of Texas Law School and coauthor of Fault Lines in the Constitution

"With his characteristic verve, erudition, and insight, Noah Feldman explores the constitutional breakup reflected and propelled by the Civil War. That he sheds fresh light on a subject that has been discussed so extensively is deeply impressive.” —Randall Kennedy, professor at Harvard Law School and author of Say It Loud!

“It’s Noah Feldman’s oft-demonstrated great gift to write about complex things clearly, with an eye to what’s important. There are many books about the trials of the Constitution and even more about Lincoln, but very few get both as right as this one.” —David Waldstreicher, author of Slavery’s Constitution: From Revolution to Ratification

From the Publisher

★ 12/01/2021

President Abraham Lincoln dramatically reformed the Constitution upending the series of compromises put into place since the Revolution. The Constitution maintained the Union through a balance of power between free and slaveholding states. Feldman's (law, Harvard Univ.; Scorpions) provocative constitutional history demonstrates how Lincoln radically reinterpreted the Constitution, paving the way for the destruction of slavery. Feldman contends that three key decisions, made by Lincoln without congressional input and often contrary to the law, allowed the president to reform the Constitution unilaterally. First, Lincoln went to war to coerce the seceded states back into the Union. Second, he suspended Habeas Corpus and imprisoned opponents of the Civil War, which effectively made him a constitutional dictator. Lastly, the president was responsible for issuing the Emancipation Proclamation, which declared that enslaved peoples were now free. Feldman concludes that Lincoln's transformation of the Constitution set in motion a process ongoing to this day, but possibly due to the president's wartime actions. This smartly argued work sheds light on the monumental decisions made by the Lincoln during the Civil War. VERDICT This fresh and new reading of Lincoln's presidency and the Constitution will find a home among readers interested in the Civil War and American constitutional history.—Chad E. Statler, Westlake Porter P.L., Westlake, OH

Library Journal

★ 2021-08-28
An astute exploration of Abraham Lincoln’s legal mind as he wrestled with the pro-slavery compromises of the Constitution—and transformed it.

First and foremost, Lincoln was a lawyer. Though he was personally disgusted by slavery—especially after seeing New Orleans’ slave markets, the largest in North America, when he was a young man—he grasped that the Constitution protected the institution in order for the states to work together as a union. Feldman, a Harvard law professor, lays out the central compromises of the Founding Fathers, enshrined in the Constitution in order to ensure Southern ratification: the three-fifths provision, protecting slave importation for 20 years, and the fugitive slave law. In his early forays into politics, Lincoln, a devotee of Henry Clay, followed the new Whig Party line that slavery would just fade away. However, as the author shows, the invention of the cotton gin changed all that, fueling the debate over whether new states should be slaveholding or free. Lincoln had to come to terms with this “compromise Constitution” as essentially a tool to facilitate national expansion. Yet the rebellion of the Southern states shattered this uneasy compromise, and as president, Lincoln resolved that the rebels could be coerced back into the Union. “By this logic,” writes Feldman, “Lincoln had to break the Constitution in order to fulfill his oath to uphold it.” Lincoln’s controversial—dictatorial, by some estimations—edicts included the suspension of habeas corpus, censorship of the press, and the freeing of the slaves. Feldman offers an elucidating look into Lincoln’s incremental thinking, neatly demonstrating how he articulated the “before” and “after” Constitution in the Gettysburg Address as a compromise versus a moral document, using an Old Testament/New Testament analogy that embodied equality for all promised in the Declaration of Independence. Feldman never bogs down in legalese, rendering a scholarly topic accessible for general readers.

A marvelously intricate work on Lincoln’s writings and thoughts, which continue to offer fodder for historians.

Kirkus Reviews

Narrating his remarkable history of Lincoln’s transformation of the Constitution before and during the Civil War, Noah Feldman sounds like a diligent and accomplished scholar. With his strong voice and clear enunciation, the Harvard Law professor emphasizes important points with vocal intensity that serves his writing well. Feldman says Lincoln took actions that broke the Constitution so that its founding principles would continue to hold the federalist government together in the future. Though constitutional law may seem like an esoteric subject, the author's writing about Lincoln’s thinking and actions is accessible and often spellbinding. Feldman's pro-level performance and grasp of the challenges Lincoln faced make this a must-hear for anyone interested in how the United States survived such a powerful threat to its continued existence. T.W. © AudioFile 2022, Portland, Maine

AUGUST 2022 - AudioFile

Narrating his remarkable history of Lincoln’s transformation of the Constitution before and during the Civil War, Noah Feldman sounds like a diligent and accomplished scholar. With his strong voice and clear enunciation, the Harvard Law professor emphasizes important points with vocal intensity that serves his writing well. Feldman says Lincoln took actions that broke the Constitution so that its founding principles would continue to hold the federalist government together in the future. Though constitutional law may seem like an esoteric subject, the author's writing about Lincoln’s thinking and actions is accessible and often spellbinding. Feldman's pro-level performance and grasp of the challenges Lincoln faced make this a must-hear for anyone interested in how the United States survived such a powerful threat to its continued existence. T.W. © AudioFile 2022, Portland, Maine

AUGUST 2022 - AudioFile