History and Historiography

Was Emancipation Constitutional?

By James Oakes, New York Review of Books

In The Broken Constitution, Noah Feldman argues that the Confederate states had a constitutional right to secede and that Lincoln violated the Constitution in forcing them back into the Union and freeing the slaves.

Noah Feldman, the Felix Frankfurter Professor of Law at Harvard, believes that the eleven slave states that seceded from the Union and formed the Confederacy in 1861 had a constitutional right to do so. That, he says, is what James Madison, sometimes referred to as “the Father of the Constitution,” would have believed. By contrast, Abraham Lincoln’s decision to coerce the seceded states back into the Union was a clear violation of the Constitution, and the first of his three brazenly unconstitutional actions as president. The second was his suspension of habeas corpus and use of military tribunals to silence his political opposition. In doing these things, Feldman says, Lincoln effectively made himself into a “constitutional dictator.”

Such violations interest Feldman chiefly because Lincoln had always claimed to be a strict adherent of the Constitution, even if that meant he had to preserve slavery despite his moral objection to it. Indeed, his respect for the proslavery compromises made by the Founders was so deep that only after two flagrant repudiations of constitutional restraint was Lincoln willing to undertake his third and most extraordinary violation of the Constitution, the Emancipation Proclamation. As Feldman sees it, Lincoln broke an already broken Constitution, thereby paving the way for the Thirteenth Amendment, which abolished slavery everywhere in the United States.


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