History

The Broken Constitution: Lincoln, Slavery, and the Refounding of America

The Broken Constitution: Lincoln, Slavery, and the Refounding of America

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  • Create Date：2021-12-31 06:51:10
  • Update Date：2025-09-07
  • Status：finish
  • Author：Noah Feldman
  • ISBN：0374116644
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Summary

A New York Times Book Review Editors' Choice

An innovative account of Abraham Lincoln， constitutional thinker and doer

Abraham Lincoln is justly revered for his brilliance， compassion， humor， and rededication of the United States to achieving liberty and justice for all。 He led the nation into a bloody civil war to uphold the system of government established by the US Constitution--a system he regarded as the "last best hope of mankind。" But how did Lincoln understand the Constitution？

In this groundbreaking study， Noah Feldman argues that Lincoln deliberately and recurrently violated the United States' founding arrangements。 When he came to power， it was widely believed that the federal government could not use armed force to prevent a state from seceding。 It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president， and that the federal government had no authority over slavery in states where it existed。 As president， Lincoln broke decisively with all these precedents， and effectively rewrote the Constitution's place in the American system。 Before the Civil War， the Constitution was best understood as a compromise pact--a rough and ready deal between states that allowed the Union to form and function。 After Lincoln， the Constitution came to be seen as a sacred text--a transcendent statement of the nation's highest ideals。

The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it。 To do so， it offers a riveting narrative of his constitutional choices and how he made them--and places Lincoln in the rich context of thinking of the time， from African American abolitionists to Lincoln's Republican rivals and Secessionist ideologues。

Includes 8 Pages of Black-and-White Illustrations

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Reviews

Comaskeyk001 ，

There’s a term， “the halo effect” where you give certain people a pass and don’t judge them critically。 That is certainly my way of viewing Lincoln。 This book challenges that attitude。 I had read several books on Lincoln。 No author presents this Civil War， authoritarian side of him as this book does。in the end it all makes a certain amount of sense。 Damn good book to read。

David Locke ，

The Broken Constitution is a history book that author Noah Feldman approaches like a lawyer。 That is， his goal is to present the strongest case he can for his interpretation of the facts， without admitting into evidence （or in this case the text of his book） anything that might suggest to the reader the possibility of ambiguity。 As an argument， this book is interesting at times， as a work of history it is disappointing。 I will give a short summary of Feldman’s argument and then offer a couple ex The Broken Constitution is a history book that author Noah Feldman approaches like a lawyer。 That is， his goal is to present the strongest case he can for his interpretation of the facts， without admitting into evidence （or in this case the text of his book） anything that might suggest to the reader the possibility of ambiguity。 As an argument， this book is interesting at times， as a work of history it is disappointing。 I will give a short summary of Feldman’s argument and then offer a couple examples of why I found Feldman’s approach to historical interpretation and evidence lackluster。To briefly sum up Feldman’s argument， Abraham Lincoln was for much of his life devoted to the “compromise constitution，” an understanding of the constitution shared by many Americans in the nineteenth century that took the document to be a sort of work in progress that required the continual negotiation and compromise of all parties to keep its representative government functional。 Beginning when Lincoln joined the Republican party and accelerating after his election and the outbreak of war， Feldman argues that Lincoln abandoned this view of the constitution， in favor of one in which he as the chief executive had nearly unlimited authority to ignore statutes， constitutional provisions， and the supreme court if he deemed it necessary to win the war。 In doing so， Feldman argues， Lincoln “broke” the old constitution defined by compromise and helped instantiate a new understanding of the constitution based on moral authority。The primary flaw in this book， to my mind， is that for all its talk of compromise and how Lincoln rejected it， Feldman devotes precious little time to engaging with the people Lincoln had to compromise with， namely Southern pro-slavery ideologues。 This book is mostly an indictment of Lincoln and therefore is primarily focused on what he did and did not do， but reading Chapter Three “The Choice for War，” I found myself wondering exactly what Feldman would have had Lincoln do instead。 Feldman argues on pages 165-166 that “The realities of the compromise Constitution had rested on a basic truth that Lincoln now refused to accept: constitutional government depended on the willingness of the majority to make concessions to the minority sufficient to keep them participating in the government。 That is necessarily true of every constitutional government that has ever existed。” Reading this book， you would be forgiven for forgetting that Lincoln won a constitutional election， that pro-slavery southerners ran a pro-slavery candidate against him and lost， and only once they had lost this election （but before Lincoln even formally assumed power） did pro-slavery southerners in seven states move forward with secession。 All of Feldman’s blame is on Lincoln， the constitutionally elected president， for apparently violating constitutional norms of compromise， and not the folks who （unconstitutionally） took their ball and went home once they couldn’t have their way， and before he’d even had a chance to govern。 This is one example， but this same flaw is evident throughout the book especially in Chapter Three。 Feldman can only make his argument that Lincoln alone “broke” the “compromise constitution，” by leaving out the folks who made it abundantly clear that there was little short of Lincoln giving up the office he had just （I repeat） won fair and square in an election they participated in， that would bring them back to the bargaining table。Feldman goes on to argue that over the course of the war Lincoln effectively transformed himself into a dictator， an argument that goes to far in a number of places。 His case that Lincoln oversaw a severe crackdown on freedom of the press and freedom of speech is probably the most egregious examples of this。 Feldman’s argument relies on describing many of the very real and very worrisome infringements on freedom of the press during the war and asserting that because Lincoln was in charge of the federal government he must have directed or at the very least approved of all of it。 Feldman has very little evidence that Lincoln actually had anything to do with almost any incident of malfeasance he describes。 While he begins this section of the book by declaring that Lincoln “condoned and even embraced” the tactic of suppressing opposition newspapers （page 217）， within two pages he is forced to backtrack to “it is a fair inference that [Lincoln] approved，” of such actions （page 219）。 This strikes me as an artful way of covering up a lack of evidence。 Perhaps more to the point， is that at least twice he mentions overzealous suppression of newspapers by a U。S。 general as part of an overall indictment of the behavior of Lincoln’s administration but fails to mention that Lincoln rebuked that commander for those actions。 On page 218 he disapprovingly accounts General John Fremont’s declaration of martial law in Missouri， without noting that his extreme measures there led Lincoln to rapidly re-assign him elsewhere。 A few pages later （page 224） he recounts the suppressive behavior of General Milo Hascall who made himself a terror of newspapers in Indiana， so much so that “Lincoln himself questioned whether Hascall had gone too far。” In fact （although Feldman doesn’t mention this） Lincoln had Hascall moved out of Indiana after only a month because of all the trouble he was causing。 Feldman's determination to ignore anything that pro-slavery southerners were up to is again evident in this section when he declares that "Lincoln suppressed free speech and free expression to the greatest degree that they have ever been suppressed in U。S。 history。" （page 223） This is a fantastic claim and you might expect someone making it to engage with how for the previous thirty years almost every slave state had made it illegal to speak or publish in favor of the abolition of slavery， sometimes under penalty of death （see for example chapter six of Michael Kent Curtis' Free Speech the People's Darling Privilege）。 In another example of this same sort of highly selective argumentation， this time concerning the announcement of the emancipation proclamation in September 1862， Feldman argues that “except for voting Lincoln out of office in elections that were still two years away， there was no apparent constitutional mechanism for “the people” to stand up in favor of the Constitution and against [Lincoln]，” noting that “Congress…lacked the will or the capacity to block Lincoln。” What Feldman does not acknowledge is that congressional elections took place six weeks after the announcement of the emancipation proclamation。 If Lincoln had truly been the tyrant Feldman would have us believe， why give voters a chance to rebuke his party for the proclamation and harm his ability to govern？ I don’t know if Feldman only considers presidential elections “Constitutional，” or perhaps thinks the elections could not possibly change the character of Congress， or if he was just deliberately misleading his readers but this sort of oversight is common。Finally， Feldman’s endnotes are frustratingly sparse and where they do exist are often betray a lack of engagement with the immense scholarship on Lincoln， the Civil War， and the legal and constitutional issues it provoked。 He frequently makes assertions about what beliefs Lincoln held at a certain time that are not supported with an accompanying note to establish this。 At times it's unclear what books he's relying on for his general knowledge of the period because he'll go a page and a half without a note and then when there is one it is only for a speech that he just quoted。 This isn't going to matter to most readers I am sure （and I'm sure his publisher wanted to keep the notes to a minimum）， but it makes it difficult to engage with the book because when Feldman makes an assertion and then doesn't back it up， the reader doesn't know where he got his information or what sources he's using to come to his conclusions。 Even if you don't care about the notes or the engagement with historical scholarship or whatever， the fact is Feldman is arguing for a dramatic re-appraisal of the legacy of a major historical figure and he just doesn't have the receipts （or doesn't show them to us which， in terms of critical engagement， amounts to the same thing）。Obviously， there’s plenty more in the book than this， but I hope these examples make it clear why I find Feldman’s approach to this topic unsatisfactory。 I do not mean to imply that Abraham Lincoln is above reproach， or that every criticism that Feldman puts forward in this book is invalid。 Feldman just doesn’t offer the reader all the evidence， and sometimes frames the evidence he does provide in misleading ways （intentionally or not）。 If you want to read an indictment of Lincoln than knock yourself out， I guess， just take his evidence with a grain of salt。 If you want an account of the legal and constitutional issues of the Civil War Era that weighs the available evidence and tries to come to reasoned conclusions I would suggest John Witt’s Lincoln’s Code: The Laws of War in American History or Laura Edwards’ A Legal History of the Civil War and Reconstruction。 。。。more

Charles McGonigal ，

Very clear tracking of Lincoln's constitutional evolution， but not as gripping as Feldman's other books。 Very clear tracking of Lincoln's constitutional evolution， but not as gripping as Feldman's other books。 。。。more

Colin Thomas ，

Fantastic angle， fantastic research， fantastic history。 Feldman brings his legal and constitutional brilliance to this project in a way that will have you rethinking the constitution， the civil war， and American history。 Not to mention Lincoln。 Nothing I’ve read on Lincoln has ever painted quite so stark a picture of （a） his own controversial， anti-constitutional， anti-liberal democracy， downright dictatorial actions， （b） the incredible contrast of those actions against his deeply， devoutly mode Fantastic angle， fantastic research， fantastic history。 Feldman brings his legal and constitutional brilliance to this project in a way that will have you rethinking the constitution， the civil war， and American history。 Not to mention Lincoln。 Nothing I’ve read on Lincoln has ever painted quite so stark a picture of （a） his own controversial， anti-constitutional， anti-liberal democracy， downright dictatorial actions， （b） the incredible contrast of those actions against his deeply， devoutly moderate political life， and （c） the utter lack of any viable options for ending slavery OR preserving the union within the realm of legal， and even moral， righteousness。 Lincoln remains the most profound figure in American history。 This book expertly portrays the multitudes he contained as a leader， a legal thinker， a devoted unionist， a quasi racist and quasi anti-racist， and more。 A must read for any student of the US Constitution， Abraham Lincoln， or slavery。 。。。more

Jay Darcy ，

Challenged every perception I had of Abraham Lincoln！ Overall， Feldman gave me a more expansive and nuanced view of Lincoln， the Civil War， and the US constitution。 I was especially impressed by his ability to go into great detail yet remain compelling and engaging。 Highly recommend。

Zach ，

An extraordinary nuanced niche analysis of Lincoln and his views and actions on the Constitution。 I sure wouldn't recommend anyone just getting into the study of American history start here but I would whole heartedly recommend anyone who has a fascination with American Law， the slavery issue or Lincoln as a subject put this on their must read list。I have studied closely the civil war， and the periods of history before and after but I have never read such a close examination of Lincoln on the su An extraordinary nuanced niche analysis of Lincoln and his views and actions on the Constitution。 I sure wouldn't recommend anyone just getting into the study of American history start here but I would whole heartedly recommend anyone who has a fascination with American Law， the slavery issue or Lincoln as a subject put this on their must read list。I have studied closely the civil war， and the periods of history before and after but I have never read such a close examination of Lincoln on the subject of slavery before。 I really appreciate the insight I gained by looking at this subject through the lens of a lawyer like Noah Feldman。 He really gets in deep on why Lincoln said and acted the way he did always threading the needle as a politician and seemingly letting down at times people like myself some 150 years later at certain moments。 My reviews are usually meta-analysis on how I felt reading the books so let me get into that now。 This book was thorough， it was an analysis on one subject broad enough。 It opted for specifics and a deep understanding rather than readability and entertainment。 Far from a dry text it is going for a thorough analysis and I appreciated it for that。 Sometimes studying a subject is a bit of work but like I said this was far from a dry text。 I enjoyed it and would highly recommend anyone else looking for a deeper understanding to give this one a shot。 。。。more

Peg - The History Shelf ，

You can read my review at Shelf Awareness here: https://www。shelf-awareness。com/reade。。。 You can read my review at Shelf Awareness here: https://www。shelf-awareness。com/reade。。。 。。。more

Reference

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