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.

When Abraham Lincoln assumed the presidency in 1861, the United States’ constitutional arrangements were not the ones we know today. It was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that it had no authority over slavery in states where the institution existed and that basic civil liberties could not be suspended during a rebellion without the consent of Congress. As president, Lincoln broke decisively with all these precedents, deliberately and repeatedly violating the United States’ founding principles. To what end? How did Lincoln understand the Constitution and how did he transform it?

In The Broken Constitution, Noah Feldman tells the full story of how Lincoln tore up the Constitution in order to save it. Prior to the Civil War, the document was best understood as a compromise pact—a rough-and-ready deal that allowed the Union to be forged from a disparate collection of states. After Lincoln, the Constitution came to be seen as a sacred text—a transcendent statement of the nation’s highest ideals. This happened because of the choices Lincoln made in dramatic circumstances; as violence raged, he variously ignored, reviled, and revised long-standing beliefs and set the country on a new path.

Approaching the Civil War from a fresh angle, Feldman offers a riveting narrative of Lincoln’s constitutional choices and how he made them—from the resupply of Fort Sumter to the drafting of the Emancipation Proclamation, and from the arrest of newspaper editors and politicians who opposed the draft to the rethinking of the country’s core rights and to whom they belonged. To do so, he situates the sixteenth president within the rich context of the political and legal thinkers of his time, from African American abolitionists and traditionalist judges to Republican rivals and secessionist ideologues.

The Broken Constitution calls not only for a reassessment of Lincoln himself but also for a new look at America’s founding document and its place in our law, our politics, and ourselves.

Product Details

ISBN-13:	9781250858788
Publisher:	Picador
Publication date:	11/01/2022
Pages:	400
Sales rank:	616,067
Product dimensions:	5.20(w) x 8.30(h) x 1.00(d)

About the Author

Noah Feldman is the Felix Frankfurter Professor of Law at Harvard Law School, a columnist for Bloomberg Opinion, and the host of Pushkin Industries’ Deep Background podcast. He is the author of ten previous 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 3

1 The Compromise Constitution 13

2 The Breaking Constitution 79

3 The Choice of War 131

4 Political Prisoners 183

5 Emancipation and Morals 251

Conclusion 319

Notes 329

Acknowledgments 351

Index 353

Editorial Reviews

"[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

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