INTRODUCTION
Poised to sign the Emancipation Proclamation, Abraham Lincoln found he could not write his name. He told the breathless witnesses—his private secretary John Nicolay, Secretary of State William Seward, and Seward’s son Frederick—that the reason was not any uncertainty on his part. He had been shaking hands for three hours that day and his hand was simply tired. His “whole soul” was in the decision to emancipate, Lincoln insisted. He was pausing only to avoid a “tremulous signature” because “If my hand trembles when I sign the Proclamation, all who examine the document hereafter will say, ‘He hesitated.’”1
This story has become part of our Lincoln hagiography. It is invariably told to emphasize that the Great Emancipator had no ambivalence about his historic act. Lincoln’s reassurance of his colleagues is meant to reassure the listener of the president’s certainty. He acted decisively to create a new moral order, righting the wrong of slavery and ushering in a new era that would eventually be grounded in equal rights and citizenship for all.
Yet Lincoln’s explanation of why his hand was trembling and his insistence on his single-minded confidence also suggest a need to reassure himself about contradicting the considered position he had held about slavery for the entire thirty years of his public life. Until that juncture in the war, Lincoln had always said publicly and believed privately that the federal government had no constitutional power to end slavery, as troubling as that institution might have been to him. If Congress, the lawmaking branch, lacked the authority to emancipate the slaves, then the president acting on his own certainly had no such capacity.
Lincoln’s act of emancipating enslaved people held in the rebellious Confederacy marked the culmination of an extraordinary transformation in his beliefs about the meaning of the Constitution. He still purported to believe that slaves were private property, and that private property was protected by constitutional guarantee. Now, however, he had allowed himself to develop an additional belief: as commander in chief, he had the legal power to order the otherwise unconstitutional taking of the property of the citizens of states prosecuting the war of rebellion.
In his first inaugural address, Lincoln had told the public that he was prepared to acknowledge the legal legitimacy of slavery if it would hold together the union. Slavery, according to this view, was enshrined in the Constitution. Indeed, as he saw it, the preservation of slavery was the condition for the creation and maintenance of the union. Union came first; freedom for African Americans a distant second. Emancipation represented a total reversal of this hierarchy of values. No wonder Lincoln’s hand trembled. By signing, he was subverting the very Constitution that was supposed to provide the reason for going to war in the first place.
In doing so, we know, Lincoln was transforming the meaning of the Civil War itself. What had begun as a war justified in the name of union now became a war to end slavery. But simultaneously, and just as important, Lincoln was also re-forming the basic character of the Constitution.
Today we conceive of the Constitution as a moral compact—a higher law that embodies an ideal form of government. Yet the original Constitution was not a moral ideal. It was a compromise that preserved slavery and, by doing so, allowed the United States to form and expand westward. By breaking the compromise to achieve emancipation, Lincoln was cleansing the Constitution of its compromised character and making it into a worthy object of veneration and moral aspiration.
Emancipation was not Lincoln’s only dramatic breaking and remaking of the existing Constitution through a radical, unilateral reinterpretation of its meaning. Even before he issued the proclamation, Lincoln confronted two other decision points of epochal importance that paved the way for the culminating third.
First, almost immediately on assuming the presidency, he had to decide—alone, without Congress’s help—to go to war to preserve the union. Only in retrospect does it seem obvious that force was constitutionally justified in the face of secession. James Buchanan’s administration had produced a report stating bluntly that the federal government had no constitutional authority to act if states seceded. Nothing in the Constitution authorized war to save the union. The precedent of 1776, as well as Lincoln’s own words and views from the 1840s, supported letting the South go. Yet according to him—and only to him—his oath of office was an “oath registered in Heaven” to preserve the union.2 Lincoln chose war, reinterpreting the Constitution through the claim that it had been broken by the South and that his action was justified to repair the breach.
Second, Lincoln acted—again alone, without Congress—to suspend habeas corpus in the first days of the war, effectively transforming himself into a constitutional dictator. The best and most obvious reading of the Constitution gave Congress alone the power to eliminate an arrested person’s basic right to a judicial hearing when deemed necessary in cases of war or rebellion. Congress was not in session when Lincoln acted; but when it met months later, in July, it refused to ratify Lincoln’s actions. The president ignored the implicit rebuke and began imprisoning war opponents in the territory stretching from Washington, D.C., to New York, including a member of Congress and almost half the Maryland legislature. Lincoln tried to back away a year later, offering amnesties and releasing some political prisoners. But then he acted unilaterally again, this time suspending habeas corpus nationwide on September 24, 1862. As a result, thousands of civilians all over the Union were arrested and detained without trial, often for months or even years. Scores of newspapers critical of the war were shut down or blocked from being sent through the mail. Congress did not ratify this decision until March 1863. Over the course of the war, Lincoln’s policies and orders created the most extreme suppression of free speech to occur at any time in U.S. history.
Lincoln’s effectiveness as a kind of dictator who could suspend constitutional rights at will, based on a claim of necessity, served as a model for the process that led him to abolish slavery by executive command. The Constitution—understood as the legal framework of the union—provided Lincoln with the basis for going to war in the first place on the theory that states had no constitutional authority to secede and that as president he had the constitutional duty to stop them. Once the Constitution had been broken by secession, however, the war to reestablish it created a new constitutional situation, one in which the principles and rules embodied in the peacetime Constitution could be broken and transformed by the president in the effort to save the Constitution itself. The breaking of the compact justified breaking the rules the compact contained. Rupture led to rupture. And that rupture led to transformation.
THE CONTRADICTORY CONSTITUTION
The subject of this book is the extraordinary arc of reversal in Lincoln’s understanding of the Constitution—and its climactic, historic effects on the Constitution and the nation itself. My aim is to paint a portrait of Lincoln as a constitutional thinker: one of the most influential in U.S. history, and the most influential of all on the subject of the Constitution in crisis. To this end, I tell Lincoln’s story and the story of the Constitution in tandem, highlighting a range of voices, including those of African Americans and women who belong in the historical record alongside elected politicians. The vicissitudes of the Constitution, including still-relevant debates about whether the Constitution was inherently a proslavery document, can help us understand Lincoln’s trajectory. In turn, Lincoln’s evolution and high-stakes decisions reveal how the prewar Constitution came to be ruptured and remade.
The first part of the story follows Lincoln through his early encounters with the expanding United States and his entrance into politics. It shows that the Constitution, drafted in 1787 and ratified over the next two years, had a fundamentally different moral character from the post–Civil War Constitution. The Constitution we know today enshrines the value of human equality that almost all Americans share, even if that value has not always been implemented in practice. In contrast, the antebellum Constitution rested on a compromise that was understood from the start to be amoral or even immoral: namely, the preservation and perpetuation of slavery.
That compromise over slavery was understood by the Constitution’s framers and supporters to be necessary in order to achieve the greater goal of union. Slavery was a wrong, according to most of the founders, including a good number of slaveholders like James Madison. But it was a wrong that could be tolerated to serve the greater good of union. Without guarantees to continue slavery, the Southern slaveholding states would never have agreed to the Constitution. The compromise over slavery was justified to create and preserve the union.
As the United States grew, union gradually came to be an almost mystical concept. But concretely, the union developed into a practical political arrangement that enabled the United States to expand west and south into new territory and become a continental power. Without union, there could have been no settlers colonizing new territories and making them into new states—and no vast profits in land speculation and agriculture. Without union, the United States would have been stuck as an Eastern Seaboard power, prone to the same internal struggles over land and resources as the European states, which were themselves locked in by their geography. Without union, there could be no manifest destiny.
The Constitution was simply the necessary precondition for the union—the legally binding, contractual agreement that embodied the compromise that enabled the union to be. It was not a higher law in the moral sense, as many would come to believe in later years. It was, rather, an all-encompassing basic law. To Americans who sought territorial expansion, it was necessary to achieve that goal. To those more skeptical of expansion, the Constitution was nonetheless necessary to preserve the union from collapse.
Seeing it as a structure of compromise created a profound contradiction for every single supporter of the Constitution who also believed in the wrongness of slavery. From 1789 until 1861, if you believed in the Constitution, you were believing in an agreement that contained and continued a deep moral wrong. If you were willing to fight and die for the union, you were necessarily also willing to fight for the perpetuation of slavery as a subordinate but necessary condition. A handful of abolitionists, white and Black, condemned the Constitution as evil on account of the compromise. Another handful, also including thinkers of both races, insisted that the Constitution, all evidence to the contrary, actually opposed or outlawed slavery. Those white Southerners who saw slavery as morally righteous felt no conflict: they endorsed the Constitution as protecting slaveholders’ rights, while fretting that the guarantees might be breached. Almost everyone else—the mainstream of antebellum Americans—treated the constitutional compromise over slavery as legitimate despite the moral wrongfulness of the institution that the compromise protected and preserved.
Lincoln accepted this contradictory compromise. More than that: as an admirer of Henry Clay, the great compromiser, and as a member of the Whig Party, the party of sectional compromise, Lincoln was fully committed to preserving the compromise Constitution in order to preserve the union.
Of course, a constitution built on a compromise with slavery was prone to ultimate crisis—and rupture. Lincoln’s early beliefs and experiences reveal how this inevitable constitutional crisis was built into the compromise itself as it developed during the 1820s, ’30s, and ’40s. Expansion was the reason for many opponents of slavery to accept the compromise. Yet expansion created the conditions for new conflict over whether future states would be slave or free.
People like Lincoln and his family, moving from Virginia to Kentucky to Indiana to Illinois in a single generation, brought their values and beliefs with them. The frontier was thus settled by white Americans who, depending on their interests and ideals, either wanted to bring slavery or a ban on slavery into their newly settled territories. The imperative to enable this settlement movement is a large part of the reason that the North continued to accept and reaccept the compromise on slavery.
Frontier settlement—the dynamic some academics now call settler colonialism—destabilized the very compromise that had been made to enable it. The decades-long struggle over whether new states would be slave or free became itself a proxy for the struggle over the future of slavery and the possibility of a continuing constitutional union. Lincoln’s own path shows this, as he traveled from prioritizing the Constitution and union to reordering his values to place the death of slavery over the constitutional value of law.
RUPTURE
Rupture in our constitutional and national fabric remains paradoxically the untold story of the Civil War—the topic almost no one has wanted to touch in the vast historiography of the war and of Lincoln’s role in it. With our constitutional fabric again under pressure, now is the right time to recast the first Constitution as an enterprise that ultimately failed, and to substitute a narrative of a repaired and transformed Constitution for the received narrative of continuity.
Civil war is the very definition of a failed constitution. The U.S. Constitution failed from 1861 to 1865. It was not temporarily suspended or continued only in the North. 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 “new birth of freedom” that Lincoln named in the Gettysburg Address was to be as different from the old constitutional order as the New Testament was from the Old, to use the metaphor that Lincoln intended to invoke.3
It is commonplace today to speak of the U.S. Constitution as the world’s oldest, continuously operating since its ratification in 1789. But this claim is patently untrue. After the Civil War, both sides had strong reasons to suppress the narrative of rupture in favor of the story of continuity. The reasons for the denial continue until today.
This book seeks to retell the story of the meaning of the Constitution in the Civil War and of Lincoln’s decisive action not as the story of successful salvation, but as something more dramatic, and more extreme: the frank breaking and frank remaking of the entire order of union, rights, constitution, and liberty.
Many historians who write about the Civil War are still drawn to the perennial question of what caused the conflict. No wonder, since Lincoln’s own public explanation for the war changed while it was in progress. Nearly all scholars today believe that, as Lincoln put it in his second inaugural address, slavery “was, somehow, the cause of the war.”4 Yet one school of thought, the so-called neo-revisionist, emphasizes Lincoln’s conservative caution when elected in 1860, and reads secession as an overreaction by Southerners who mistakenly believed that his election posed an existential threat to slavery. The other school, often called fundamentalist, holds that the threat to slavery was real, or fundamental, and that Lincoln and other Northern unionists were committed to policies intended to end slavery.5
This book offers a different perspective—one informed centrally by the structure of the compromise Constitution and Lincoln’s changing relation to it. The compromise Constitution, I argue, was a framework for compromise over slavery so basic to the structure of the union before the war that no one could imagine breaking it by abolishing slavery nationally and still preserving the union intact. Lincoln’s hope before the war that slavery would eventually become extinct depended on a vague, indeterminate fantasy that the compromise framework could eventually evolve so that slavery would be abolished voluntarily by slave states, with compensation for slaveholders and colonization of freed slaves to Africa.6 The neo-revisionists are correct that Lincoln himself would not have countenanced any other sort of abolition were it not for secession and the war. To do so would have broken the Constitution as he knew it.
At the same time, the compromise Constitution contained a fundamental contradiction that ensured its instability: the compromise structure enabled the union to expand, yet every expansion destabilized the compromise by raising anew the question of whether slavery itself should be extended. Southern secessionists came to see this contradiction as so devastating that it would eventually make further compromise impossible. They seceded because they sensed, correctly, that compromise over the extension of slavery had come to an end. The fundamentalists are therefore right to say that, for the seceding Southern states, the threat to slavery was indeed existential.
It took Lincoln well over a year of his presidency—a period in which secession had occurred and the war raged—to acknowledge the reality that the old constitutional compromise could never be restored. When he eventually did, the Emancipation Proclamation was the result. The rupture of the Constitution opened the door for its reconstruction on new terms—as the moral Constitution we know and revere today.
The transformation took three constitutional amendments. They abolished slavery, guaranteed equal protection of the laws for all citizens, and extended voting rights to African American men. Over the next 150 years, those amendments were by turns applied during Reconstruction; betrayed through the rise of Jim Crow segregation; and redeemed by Brown v. Board of Education, the civil rights movement, and the landmark laws enacted as a result of the movement’s influence: the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Today, more than ever, we realize that the redemption was itself incomplete. We remain, however, committed to the idea that the moral Constitution embodied in those amendments should be our beacon. Lincoln’s transformed, moral version of the Constitution endures.
Copyright © 2021 by Noah Feldman
