Lincoln Broke Our Constitution

[David Lockmiller]

Lincoln Broke Our Constitution. Then He Remade It.
Nov. 2, 2021 Guess Essay in New York Times

Mr. Noah Feldman is a professor at Harvard who specializes in constitutional law and is the author of a new book on Abraham Lincoln.

"Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln."

"He consciously and repeatedly violated core elements of that Constitution as they had been understood by nearly all Americans of the time, himself included."

In his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.

“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” he said, vowing never to defy what was “plainly written” in the Constitution. “I believe I have no lawful right to do so, and I have no inclination to do so.”

But in the 18 months that followed, Lincoln violated the Constitution as it was then broadly understood three separate times.

First, he waged war on the Confederacy.

Second, Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.

Lincoln justified both of these constitutional violations by a doubtful theory of wartime necessity: that as chief executive and commander in chief, he possessed the inherent authority to use whatever means necessary to preserve the Union.

Third, and most fatefully, Lincoln came to believe that he also possessed the power to proclaim an end to slavery in the Southern states. When he finally did so, issuing the Emancipation Proclamation in January 1863, he eliminated any possibility of returning to the compromise Constitution as it had existed before the war.

The 13th Amendment, which with Lincoln’s encouragement was passed by Congress and sent to the states in February 1865, outlawed slavery in the United States. But in a meaningful sense it merely formalized Lincoln’s guarantee, in issuing the Emancipation Proclamation nearly three years before, that whatever new constitutional order followed the war would no longer be a slavery-based compromise.



President Lincoln himself characterized the 13th Amendment to the Constitution as the "King's cure" [meaning the Constitution] to the problem of slavery.

I agree with President Lincoln.

[AussieMick]

With all due respect, and because I believe that Lincoln 'belongs to the Ages' not just to the US but to the world and posterity ....

Nothing he said or promised has any relevance to a judicial assessment of the US Constitution. His opinion is/was no more valid than Joe Blow living in Main St Poughkeepsie.

Obviously I am no expert (yes, that's a great get-out clause) but the US Constitution makes no mention of slavery. But there is a clear indication that importation of such persons was to be prohibited at a specific time ... if thats not a clear indication to Constitutional interpreters that slavery was regarded as distasteful/immoral and (OK, I'm drawing the bow a bit wider) should not exist ... I dont know what is.

The issue of Habeas Corpus has been addressed again and again. To my mind there was a rebellion going on and public safety required its suspension (which only occurred after consultation and discussion) and ( I think ) various learned persons consider it justified.

All the above is "In my opinion" and for what its worth ... obviously.

[Rob Wick]

Feldman isn't the first writer to propose this. James McPherson did the same thing when he wrote "Abraham Lincoln and the Second American Revolution." I imagine if I had access to my Lincoln books right now (I'm in the process of replacing my bookcases, and the books are scattered around the house) I could find others who did the same thing.

I'm curious David as to why you didn't include the rest of what Feldman wrote about waging war on the Confederacy? He writes, "He did this even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that neither the president nor Congress had the lawful authority to coerce the citizens of seceding states to stay in the Union without their democratic consent. Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based."

I think basing an argument on the nonsense spouted by Buchanan or Black is a weak argument at the outset. Even more so, once the Confederacy attacked federal installations, Lincoln had a clear path to keep other installations from being attacked. Feldman's first point is utter hogwash.

The rest of Feldman's argument again is nothing new. His second point is about as weak as his first. James Randall did a great deal of study on these questions in a book published almost 100 years ago. I would have to read Feldman's book before making any other arguments for or against it, but if the first two are any indication, I think this might be one I'll avoid.

Best
Rob