Title : "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."
link : "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."
"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."
Here's the NYRB review of Feldman's new book "The Broken Constitution: Lincoln, Slavery, and the Refounding of America."
From the review, by James Oakes:
It is impossible to understand the origins of the Civil War, or of wartime emancipation policy, without grasping the significance of the debate over “property in man.” Among slavery’s opponents, the fact that slaves were referred to in the Constitution as persons and never as property—even in the fugitive slave clause—had profound implications, which Feldman simply ignores.
He likewise ignores two of the most important constitutional principles regarding slavery, neither of which is explicitly stated anywhere in the document. The first was federalism, which left the regulation of slavery entirely to the states. None of the well-known constitutional clauses dealing with slavery restricted the scope of antislavery politics as effectively as the assumption that slavery was a state institution, beyond the power of the federal government.
The second principle was the war powers, ascribed to the Constitution despite the fact that there is no actual war powers “clause.” The war powers removed federalism’s restraints on Congress and the president. By this reading of the Constitution, the federal government could emancipate slaves in an effort to defeat an invading army or suppress a rebellion. Proslavery and antislavery readings of the Constitution were already evident during the debates over ratification and persisted through the Civil War. Southerners eventually claimed that the constitutional right to slave property was so absolute that Congress could neither abolish slavery in Washington, D.C., nor ban it from the territories—indeed that it was obliged to protect slavery in the territories. But those arguments were stillborn if the Constitution recognized slaves as persons rather than property. If they were persons, they were entitled to due process rights when they escaped to the free states, for example.
Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories. None of this appears in Feldman’s account of slavery and the Constitution. He claims that “Northerners could not quote the Constitution to oppose slavery, because the Constitution said nothing against the practice.”
Instead they were forced to rely on the airy platitudes about fundamental human equality in the Declaration of Independence, “the best—really the only—text they could invoke to claim an official pedigree for their moral stance.”
Actually, opponents of slavery not only cited the Constitution’s repeated references to slaves as “persons”; they invoked numerous other clauses as well. They quoted the Constitution, chapter and verse, when they claimed that Congress had the power to ban slavery from the territories or abolish slavery in Washington.
They endlessly cited the Fifth Amendment’s declaration that no “person” could be deprived of liberty without due process of law. They invoked the Fourth Amendment’s ban on unreasonable seizure and regularly quoted the Preamble, with its claim that the purpose of the Constitution was to “secure the blessings of liberty” to everyone....
By obliterating the entire history of antislavery politics and the effect it might have had on wartime antislavery policy, Feldman has, as it were, cleared the decks for his alternative interpretation—Lincoln’s successive violations of the Constitution....
Ignoring most of the legal arguments and nearly all the precedents for wartime emancipation, and garbling Lincoln’s fairly consistent references to them, Feldman instead declares that emancipating slaves was a patent violation of property rights, that everyone understood this, that the Emancipation Proclamation was Lincoln’s most outrageous abuse of the Constitution, and that Lincoln knew all along that it was illegal....
Here's the NYRB review of Feldman's new book "The Broken Constitution: Lincoln, Slavery, and the Refounding of America."
From the review, by James Oakes:
It is impossible to understand the origins of the Civil War, or of wartime emancipation policy, without grasping the significance of the debate over “property in man.” Among slavery’s opponents, the fact that slaves were referred to in the Constitution as persons and never as property—even in the fugitive slave clause—had profound implications, which Feldman simply ignores.
He likewise ignores two of the most important constitutional principles regarding slavery, neither of which is explicitly stated anywhere in the document. The first was federalism, which left the regulation of slavery entirely to the states. None of the well-known constitutional clauses dealing with slavery restricted the scope of antislavery politics as effectively as the assumption that slavery was a state institution, beyond the power of the federal government.
The second principle was the war powers, ascribed to the Constitution despite the fact that there is no actual war powers “clause.” The war powers removed federalism’s restraints on Congress and the president. By this reading of the Constitution, the federal government could emancipate slaves in an effort to defeat an invading army or suppress a rebellion. Proslavery and antislavery readings of the Constitution were already evident during the debates over ratification and persisted through the Civil War. Southerners eventually claimed that the constitutional right to slave property was so absolute that Congress could neither abolish slavery in Washington, D.C., nor ban it from the territories—indeed that it was obliged to protect slavery in the territories. But those arguments were stillborn if the Constitution recognized slaves as persons rather than property. If they were persons, they were entitled to due process rights when they escaped to the free states, for example.
Legal personhood also meant that slaves taken into the free states by their owners could be automatically emancipated, and that slavery was unconstitutional on the high seas and in the territories. None of this appears in Feldman’s account of slavery and the Constitution. He claims that “Northerners could not quote the Constitution to oppose slavery, because the Constitution said nothing against the practice.”
Instead they were forced to rely on the airy platitudes about fundamental human equality in the Declaration of Independence, “the best—really the only—text they could invoke to claim an official pedigree for their moral stance.”
Actually, opponents of slavery not only cited the Constitution’s repeated references to slaves as “persons”; they invoked numerous other clauses as well. They quoted the Constitution, chapter and verse, when they claimed that Congress had the power to ban slavery from the territories or abolish slavery in Washington.
They endlessly cited the Fifth Amendment’s declaration that no “person” could be deprived of liberty without due process of law. They invoked the Fourth Amendment’s ban on unreasonable seizure and regularly quoted the Preamble, with its claim that the purpose of the Constitution was to “secure the blessings of liberty” to everyone....
By obliterating the entire history of antislavery politics and the effect it might have had on wartime antislavery policy, Feldman has, as it were, cleared the decks for his alternative interpretation—Lincoln’s successive violations of the Constitution....
Ignoring most of the legal arguments and nearly all the precedents for wartime emancipation, and garbling Lincoln’s fairly consistent references to them, Feldman instead declares that emancipating slaves was a patent violation of property rights, that everyone understood this, that the Emancipation Proclamation was Lincoln’s most outrageous abuse of the Constitution, and that Lincoln knew all along that it was illegal....
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