The Constitution at War With Itself - The Bulwark - 0 views
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constitution lincoln freedom Founding US civil war
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the original Constitution had elements that were clearly moral—the rule of law, liberty, and self-government all implied understandings of equality that were in tension with slavery.
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To play on an analogy Feldman powerfully invokes, if we think of the compromise Constitution and the amended Constitution that came out of the Civil War as akin to the Old and New Testaments, with the first being rooted in a rigid adherence to law and the second being rooted in moral understandings, there is more to the Old Testament than its insistence on law; there is an insistence, in the Prophets in particular, on the spirit and morality the law is meant to serve. To push Feldman’s analogy, the Old Testament had shoots that would grow in the New Testament: the moral and philosophical commitments of the new had roots in the old.
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The highlight of Feldman’s narrative is an exchange between Hezekiah Ford Douglas, “who had escaped enslavement at fifteen,” and William Howard Day, a free-born black man and graduate of Oberlin College. While Douglas insisted that blacks should not, in Feldman’s words, “acknowledge the legitimacy of a constitutional order based on slavery,” Day insisted that while the government was proslavery we should not confuse this “construction of the Constitution” with “the Constitution itself.” And the Constitution itself, framed to “establish justice” and to protect “liberty,” was best understood as antislavery
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Fredrick Douglass drew on both strands of this debate, arguing in 1850 that “Liberty and Slavery” were both in the Constitution, giving us a constitution fundamentally “at war with itself.”
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the First Inaugural where Lincoln argued that the states did not have a constitutional right to secede, particularly on the grounds that they did not like the results of the election of 1860. The states might have a revolutionary right to dissolve the constitutional order and create a new one, but to secede because Lincoln was elected president when he had in no way altered the terms of the social contract was to evade the rules and break the constitutional order he was obligated to defend.
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I think Lincoln’s First Inaugural is a powerful and compelling work of constitutional analysis. Lincoln’s message in the First Inaugural was twofold. First, he reiterated the compromise. Each state had a right to “control its own domestic institutions” (meaning, of course, slavery). All representatives had sworn an oath to support “the whole Constitution,” which obligated them to adhere to the fugitive slave clause as part of the compromise and not try to evade its terms by “hypercritical rules” of interpretation
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But Lincoln went on to insist that no part of the Constitution had been violated. Given this, he argued that secession against a constitutional majority would be “the essence of anarchy.” If states could secede after an election rather than “acquiesce” to a free and fair election, then democratic government by a constitutional majority was no longer possible.
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Once ballots had settled the issue, states were constitutionally bound to oblige. Appealing to bullets was, as Lincoln put it, a “revolutionary” act that broke the constitutional order he had sworn an oath to uphold.
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Feldman points out that Lincoln’s insistence on a majority as the sovereign was quite different from the Framers’ understanding of the sovereign, which they tended to treat as the whole people.
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We might best understand this as a question of who is sovereign within the constitutional order, which is separate from who can act to dissolve the constitutional order itself
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The most visible element of this debate was whether individual states were sovereign in the latter capacity: Could they exit the constitutional order? And if they could not constitutionally leave, did the national government have power to keep them in?
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Whether America was a union founded by We the People or was a union founded by sovereign states was the subject of fraught debate in the antebellum period.
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the prolonged struggle forced Lincoln to confront the fact that the Union could not be brought back together on the terms of the old compromise.
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Feldman also highlights Lincoln as a theorist of constitutional necessity, as he is forced to confront thorny constitutional issues with no easy answer, which includes a detailed examination of Lincoln’s occasional overreach. Not only was his suspension of the writ of habeas corpus wider than necessary, but it included, Feldman writes, suspending “the basic constitutional right to free speech” and locking up critics of the war far more extensively than is usually acknowledged
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Emancipation would be made permanent with the Thirteenth Amendment, abolishing slavery and destroying the compromise at the heart of the original Constitution: “The greater drama of the passage of the Thirteenth Amendment was its transformation of the prewar, compromise Constitution into a new Constitution that repudiated the very core of that compromise as it had existed from 1787 to 1861.” This second founding culminated in the Fourteenth and Fifteenth Amendments, inscribing the principles articulated in the Declaration and reaffirmed by the Gettysburg Address into constitutional text.
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Americans—particularly those Americans who think patriotism depends on a belief in an infallible founding and a perfect Constitution—too easily gloss over how “complicated, contradictory, and fraught it was for Lincoln and the nation to overcome [the old] Constitution and remake it.”