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.