52 The New York ReviewThe Broken Constitution:
Lincoln, Slavery, and the
Refounding of America
by Noah Feldman.
Farrar, Straus and Giroux,
368 pp., $30.00Noah Feldman, the Felix Frankfurter
Professor of Law at Harvard, believes
that the eleven slave states that seceded
from the Union and formed the Con-
federacy 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 Constitu-
tion, and the first of his three brazenly
unconstitutional actions as president.
The second was his suspension of ha-
beas corpus and use of military tribu-
nals 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 theConstitution, 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 con-
stitutional restraint was Lincoln willing
to undertake his third and most ex-
traordinary violation of the Constitu-
tion, 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.Most historians, when they seek the
origins of the Emancipation Proclama-
tion, trace the radicalizing effect of the
Civil War on federal antislavery policy.
Only weeks after the war began, the
Lincoln administration decided not to
return to their owners three slaves who
had escaped to Fortress Monroe in Vir-
ginia. Over the course of the next year
Congress passed two statutes mandat-
ing the permanent “confiscation” of the
rapidly growing number of slaves who
were coming into Union lines from
disloyal states and disloyal owners. In
August 1861 the Lincoln administra-
tion began instructing Union generals
that such slaves were emancipated. Al-
though tens of thousands were thereby
liberated in the first eighteen months of
the war, some Union soldiers violated
the policy and returned escaping slaves.
In early 1862 Congress made it a
crime for anyone in the Union Army
or Navy to participate in the capture
or return of fugitives. Shortly thereaf-
ter it abolished slavery in Washington,
D.C., banned slavery from the western
territories, and required West Virginia
to abolish slavery as a condition for ad-
mission to the Union. Lincoln mean-
while refused to stay the first execution
of an American slave trader sentenced
to death. His secretary of state, Wil-
liam Seward, also negotiated a treaty,
ratified by Congress, that would lead
in a few years to the final suppression
of the Atlantic slave trade. Viewed in
light of these policies adopted early in
the war, the Emancipation Proclama-
tion appears as the climax in a series of
increasingly radical attacks on slavery.
For some historians, it was the es-
caping slaves whose swelling numbers
forced the radicalization of federal
antislavery policy. Others cite the in-
dispensable involvement of the Union
Army. And still others, myself in-
cluded, trace changes in policy back to
their origins in the antislavery move-
ment. These interpretations are not
mutually exclusive, and there is wide-
spread agreement that the ever more
aggressive attacks on slavery led to
Lincoln’s proclamation of January 1,- At that point, the historian Allan
Nevins wrote years ago, war became
revolution.
This is the familiar narrative arc that
Feldman seeks to replace by relocating
the much-needed Thirteenth Amend-
Was Emancipation Constitutional?
James Oakesyoung white woman, Caterina Valente.
And after he returned to the US, he
performed with another talented young
white woman, Anna Maria Alberghetti,
doing old Buck and Bubbles material
with shades of Robinson and Temple.
Age must have made him less threat-
ening onstage, though in Las Vegas,
his third wife, who was of Mexican and
Kashmiri descent and light- skinned,
had to tell their landlady that Bubbles
was her servant. He was in demand in
the places where his kind of showbiz
now lived: Vegas, supper clubs, TV va-
riety shows. He was old- time, don’t-
make- ’em- like- that- anymore, and to
many younger Blacks, he and his tap
dancing were antiquated, embarrass-ing, Uncle Tom. Harker is astute about
the bind. “He was the sort of Black
entertainer middle- aged white people
remembered fondly from their youth,”
he writes. But “the dirty little secret is
that this audience applauded Bubbles
in part because, in an age of racial pro-
test, he rang bells they associated with
subservience.”
You can find some of those 1960s
TV appearances on YouTube. Bub-
bles sings his old songs and does his
old steps, but his manner has become
more Robinson- like, borrowing some
of Robinson’s self- deprecating catch-
phrases. Still, there’s an edge of dan-
ger, of not entirely hidden boldness. On
a USO tour of Asia with Bob Hope in1964, and later on The Tonight Show
with Johnny Carson (where he ap-
peared frequently), he told a joke that
started with him asking his white ce-
lebrity friend if he was in favor of in-
tegration. When the friend answered
with the obligatory yes, Bubbles shot
back: “Then kiss me.”
In 1967, just after Bubbles appeared
on TV with Lucille Ball and onstage
in one of Judy Garland’s comeback
shows, he had a stroke, and his danc-
ing days were over. But that wasn’t the
end of his career, either. In the late
1970s, when a new generation of tap
dancers brought some of his successors
(Chuck Green, Honi Coles) out of re-
tirement, they brought Bubbles back,too. Wheeled onstage for concerts,
he sang and told stories. He appeared
in documentaries and was feted. He
watched as his line of tap was extended
in Gregory Hines, who did become a
movie star.
For most of his career, Bubbles kept
quiet about the ways that racism had
held him back. In his last years, he
expressed his anger more openly. In
the 1980 documentary Ta pd a n c i n’, he
says, “You had to be everything else
but what you were in order to get on
the stage.” He calls himself one of the
world’s great dancers and spits out the
role that he and Buck had to play: “jan-
itors!” He had cause to be bitter. Hark-
er’s book does him justice. QIllustration by Office of Paul SahreSeibertOakes 50 _ 54 .indd 52 4 / 14 / 22 4 : 43 PM