54 The New York Reviewindirectly. Feldman dismisses such
indirect attacks as trivial on the grounds
that they could not possibly have led to
the destruction of slavery. Yet the claim
that indirect assaults on slavery might
not have worked is largely beside the
point, because it was the antislavery
constitutionalists’ promise to attack
slavery indirectly that led, directly, to
secession and civil war. The historical
significance of antislavery constitution-
alism cannot be dismissed by means of
a counterfactual hypothesis that erases
the Civil War.
The slave states began leaving the
Union shortly after Lincoln’s victory,
claiming that the northern voters had
elected a president who denied that
the slaveholders had a constitutional
right of “property in man.” He repre-
sented a party committed to slavery’s
ultimate extinction, a party that would
readily do indirectly what it could not
do directly. Feldman, however, believes
that secession should not have led to
the Civil War because Lincoln had no
constitutional right to employ coer-
cion against the seceded states. This is
where he begins building an alternative
account of the origins of the Emancipa-
tion Proclamation. 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 alterna-
tive interpretation—Lincoln’s succes-
sive violations of the Constitution.Lincoln’s immediate predecessor,
James Buchanan, argued that although
a state had no legal right to secede, the
federal government had no power to
force a state back into the Union. Ac-
cording to Feldman, Buchanan’s inter-
pretation more accurately reflected the
views of the Founders, in particular
Madison. By contrast, Lincoln’s jus-
tification of coercion was a “novelty,”
Feldman writes, that contradicted “the
basic idea of American constitutional-
ism”: the consent of the governed. The
secession conventions of the southern
states “had made it as clear as humanly
possible” that they had withdrawn their
consent to be governed by the United
States. Yet Lincoln insisted that the
Constitution “did not allow the with-
drawal of consent by the people of the
states.”
This glosses over a number of com-
plications. The Constitution says noth-
ing about secession, so Buchanan’s
claim was as much a novelty as Lin-
coln’s. Unable to cite the Constitution,
Feldman instead cites Madison. But
Madison said different things at dif-
ferent times. During the ratification
debates he insisted, as did his fellow
Federalists, that a state could not ratify
the Constitution conditionally. On the
contrary, he wrote in a letter to Alex-
ander Hamilton, “the Constitution re-
quires an adoption in toto and for ever.”
Madison’s remarks were read aloud at
New York’s ratification convention and
subsequently published throughout
the country. Opponents of the Con-
stitution repeatedly warned that once
a state entered the Union it would be
unable to withdraw, and supporters
of the Constitution never denied it. If
there was an original understanding
about secession, there is at least some
evidence suggesting that Lincoln got it
right: the Union was perpetual.
Nor did Lincoln clearly reject the will
of the people, unless one assumes that“the people” did not include northern-
ers or that secessionists, in repudiating
the valid results of a legitimate presi-
dential election, were not repudiating
the will of the people. Feldman writes
as if there were no such thing as the
nation and restricts popular will to the
secession conventions in the southern
states. Even leaving aside the will of the
enslaved population of those states, the
issue is not nearly as straightforward
as he would have it. Lincoln believed,
for example, that, with the possible ex-
ception of South Carolina, the major-
ity of southern whites did not support
secession.
It was a standard theme of antislav-
ery politics that 400,000 slaveholders
held undemocratic sway over 30 million
Americans, and still more undemo-
cratic sway over 12 million southerners.
A recent study suggests that the elec-
toral systems devised for the secession
conventions were systematically rigged
to suppress the votes of nonslavehold-
ers.^2 The extent of popular support for
secession among white southerners is
still hotly debated among historians,
but no one doubts that Lincoln be-
lieved—whether rightly or naively—
that the secessionists did not represent
the will of the southern people.
Feldman is on firmer ground in his
discussion of Lincoln’s suspension of
habeas corpus and the imposition of
martial law in large parts of the North,
but he undermines his argument by
his repeated assertion that Lincoln
set himself up as a dictator. Lincoln
suspended habeas corpus for the first
time in the earliest weeks of the war,
and his subsequent suspensions even-
tually covered the entire country. He
allowed military trials in parts of the
Union where the courts were function-
ing, a clear violation of the Constitu-
tion. His subordinates went so far as to
arrest opposition politicians and close
opposition newspapers. Few would dis-
pute David Herbert Donald’s observa-
tion that the Civil War years brought
“greater infringements on individual
liberties than in any other period in
American history.”^3
The Constitution does, however,
allow for the suspension of habeas
corpus in the event of rebellion, and
it would be foolish to pretend that
Lincoln did not confront the larg-
est rebellion in the nation’s history.
The suspension clause is in Article I
of the Constitution, which specifies
the powers of Congress, and on that
basis Feldman endorses Chief Justice
Taney’s claim that Lincoln had no
constitutional right to suspend habeas
corpus. Taney’s reasoning, Feldman
declares, “was so powerful that it was
almost irrefutable.” But more sober
legal scholars—G. Edward White, for
example—point out that the suspen-
sion clause was placed in Article I al-
most incidentally, with no real thought
given to limiting executive authority.
Feldman is surely correct that Lincoln
trivialized habeas corpus by referring
to it as merely “one single law” among
many, rather than the bulwark of civil
liberty it has always been. But it was
not entirely unreasonable for the pres-ident to conclude that the Founders
could not have meant to paralyze the
government by requiring the country to
suffer rebellion and invasion for the six
months of the year that Congress was
out of session.
Feldman cites the familiar estimate
that during the Civil War as many as
38,000 Americans were arrested with-
out recourse to the courts. But he does
not point out that the overwhelming
majority of them were Confederates,
spies, blockade runners, or smug-
glers—traitors actively engaged in the
rebellion. Feldman instead highlights
the relatively few arrests of opposition
politicians and newspaper editors and
dismisses Lincoln’s justifications as
“paranoid—even unhinged.” Lincoln,
he says, used “terms that would sound
familiar in any dictatorial regime.”
Eric Foner, hardly a Lincoln apologist,
offers a more reasoned assessment:
“Lincoln was no dictator,” he writes.Elections took place as scheduled
throughout the war, and the Dem-
ocratic press continued to criticize
the administration in the harshest
terms. But neither did he possess
a modern sensitivity to the impor-
tance of civil liberties.^4Having offered his readers a mis-
leading account of secession and an
indictment of Lincoln’s record on civil
liberties, Feldman turns to the the
most controversial thesis of his book,
the alleged illegality of the Emancipa-
tion Proclamation. To appreciate the
uniqueness of his analysis, some histor-
ical background is required, not least
because it is entirely missing from The
Broken Constitution.
Beginning with the Treaty of Paris
of 1784, which ended the Revolution-
ary War, the United States repeatedly
acknowledged the right of belliger-
ents to emancipate the slaves of ene-
mies during wartime. In debates over
British reparations in the 1790s, every
member of Congress who addressed
the issue, along with every member of
President George Washington’s cabi-
net who spoke up, acknowledged the
legitimacy of military emancipation
in wartime. In the 1830s former pres-
ident John Quincy Adams, who had
returned to the House of Representa-
tives, stoutly affirmed that the consti-
tutional war powers would allow the
federal government to emancipate
southern slaves should the US military
be called upon to repel an invasion or
suppress an insurrection. During the
secession crisis antislavery congress-
men quoted Adams, to the horror of
their southern colleagues, and shortly
after Lincoln’s inauguration Senator
Charles Sumner—who was well versed
on the legal status of slavery in war-
time—visited the White House to in-
struct the new president that the war
powers of the Constitution authorized
him to emancipate the slaves of rebels.
As the war progressed, reputable
legal scholars, notably William Whiting,
weighed in with substantial tracts spell-
ing out the president’s constitutional
power to emancipate slaves. But the
most important legal defense of eman-
cipation was contained in the Lieber
Code. In December 1862, weeks beforeLincoln issued the Emancipation Proc-
lamation, two of the highest- ranking
officials in his administration—
General-in-Chief Henry Halleck and
Secretary of War Edwin Stanton—
asked Francis Lieber, a renowned pro-
fessor of law at Columbia College, to
revise the American military’s Articles
of War. The result was General Orders
No. 100, known as the Lieber Code.
Because state and local laws were sus-
pended when armies occupied enemy
territory, Lieber argued, fugitives es-
caping from the disloyal slave states
to “the military forces of the United
States” were “made free by the law of
war” and, once freed, could never be
re-enslaved. Halleck, himself an expert
on the laws of war, edited the code to
ensure that it was consistent with Lin-
coln’s emancipation policy, and it was
released in April 1863. With that, the
well-established legal justification for
military emancipation was formalized
in American law.
But readers of The Broken Con-
stitution will find no reference to any
of this. William Whiting appears no-
where and the Lieber Code’s defense
of emancipation is not even mentioned.
Instead, Feldman claims that Lincoln
never offered a plausible legal justifi-
cation for the Emancipation Procla-
mation other than “military necessity.”
He says that Lincoln’s critics never ac-
cused him of acting in bad faith, when
in fact they repeatedly claimed that the
president’s defense was fraudulent be-
cause emancipation was never militar-
ily necessary. Feldman simply ignores
the long- standing American consensus
in support of military emancipation
and instead endorses the views of pro-
slavery Confederates who denied its
constitutionality.
Ignoring most of the legal arguments
and nearly all the precedents for war-
time emancipation, and garbling Lin-
coln’s fairly consistent references to
them, Feldman instead declares that
emancipating slaves was a patent vio-
lation of property rights, that everyone
understood this, that the Emancipation
Proclamation was Lincoln’s most out-
rageous abuse of the Constitution, and
that Lincoln knew all along that it was
illegal.
Most reputable scholars agree that
Lincoln expanded the war powers of
the presidency far beyond their pre-
vious limits. No chief executive had
ever called up an army of 75,000 to
suppress a rebellion without prior
congressional authorization. None of
Lincoln’s predecessors, or for that
matter successors, dared suspend civil
liberties so broadly. No one had ever
come close to expanding the reach of
military emancipation to more than
three million enslaved people. But it
does not follow that the Constitution
required Lincoln to passively accept
the dismemberment of the Union. He
was no dictator. And his Emancipa-
tion Proclamation was an extension
of well-established legal and historical
precedents.
Feldman is surely right that the Con-
stitution was radically transformed by
the addition of the Thirteenth Amend-
ment, effectively undoing the compro-
mises the supporters and opponents
of slavery made in 1787. But he could
have made that point without ignoring
the voluminous historical evidence that
would have added some much- needed
nuance to his thoroughly unpersuasive
analysis. Q(^2) Mario L. Chacón and Jeffrey L. Jen-
sen, “The Political and Economic Ge-
ography of Southern Secession,” The
Journal of Economic History, Vol. 8 0 ,
No. 2 (June 2020).
(^3) David Herbert Donald, Lincoln
(Touchstone, 1995), p. 304.
(^4) Eric Foner, The Fiery Trial: Abra-
ham Lincoln and American Slavery
( Norton, 2010), p. 264.
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