May 12, 2022 53ment to the end of a succession of
constitutional violations. He does not
doubt that the war became an antislav-
ery revolution, but he doubts that this
had much to do with escaping slaves,
the behavior of the Union Army, or
the longer history of antislavery pol-
itics. The progression from the earli-
est decision not to return fugitives to
the Emancipation Proclamation was
hardly inevitable, he notes, nor was it
even legally or logically necessary. In a
sense, of course, he’s correct. History
doesn’t proceed according to legal or
logical necessity. But neither was there
any legal or logical necessity, much less
inevitability, in the progression Feld-
man describes, from coercing seceded
states back into the Union to issuing
the Emancipation Proclamation.
Yet Feldman does appear to believe
that once Lincoln made the fateful
decision to abandon constitutional
restraint by issuing his illegal procla-
mation, the path was cleared for the
amendment that would replace the
proslavery provisions of the Founders’
Constitution. To make his case, how-
ever, he must discount much more than
the history of accelerating antislavery
policy during the Civil War. He must
expunge the entire record of antislav-
ery constitutionalism stretching back
to the founding era.Feldman begins with a chapter on
what he calls “the compromise Consti-
tution,” that is, the Constitution that he
believes protected slavery and made it
a permanent feature of American soci-
ety. It is worth noting that when Feld-
man uses the word “compromise,” what
he actually means is “capitulation.”
Most historians who describe the Con-
stitution as a compromise accept that
proslavery and antislavery delegates at
the constitutional convention actually
compromised with one another. In re-
turn for Congress’s right to ban slavery
from the western territories, for exam-
ple, the slaveholders secured the right
to recapture fugitives who escaped into
free states. Opponents of slavery at
the convention did not want any slaves
counted for purposes of representation
and taxation, whereas the proslavery
delegates wanted all the slaves counted.
The result was the notorious “three-
fifths” clause, in which neither side
got all it wanted. Delegates from the
lower South threatened to walk out if
Congress were given any power to reg-
ulate the slave trade. After objections
from antislavery delegates, however,
Congress secured the power to ban the
slave trade—the first such provision in
history—but not until 1808. These are
the major compromises between pro-
slavery and antislavery delegates that
nearly all historians agree were em-
bedded in the original Constitution of
1787.
But Feldman describes no such give-
and-take and disregards all evidence
that the antislavery delegates had any
influence at the convention. He claims,
for example, that the slave trade clause
was “included in the Constitution at
the insistence of South Carolinians,”
when it was quite clearly included at
the insistence of antislavery delegates.
One would scarcely notice, reading
Feldman’s book, that the Constitution
gave Congress the power to ban slavery
from the western territories—a power
that, more than any other, prompted
decades of escalating tension betweenthe North and the South. Nor does
Feldman even hint that proslavery and
antislavery forces developed very dif-
ferent understandings of what the fu-
gitive slave clause actually meant. This
last dispute matters because it raised
the single most important legal issue in
the decades-long debate over slavery—
whether the Constitution recognized
slaves as property or as persons.
Sean Wilentz has demonstrated that
the slaveholders at the constitutional
convention tried and failed to get slaves
recognized as property in the Constitu-
tion.^1 Years later, however, southerners
claimed that the fugitive slave clause
vested owners with the very right they
had been denied in 1787. Antislavery
northerners flatly rejected this and in-
sisted, as Lincoln put it, that “no such
right” to slave property existed in the
Constitution, even by implication. It is
impossible to understand the origins of
the Civil War, or of wartime emanci-
pation policy, without grasping the sig-
nificance 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 doc-
ument. The first was federalism, which
left the regulation of slavery entirely to
the states. None of the well-known con-
stitutional clauses dealing with slavery
restricted the scope of antislavery pol-
itics as effectively as the assumption
that slavery was a state institution,
beyond the power of the federal gov-
ernment. The second principle was the
war powers, ascribed to the Constitu-
tion 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. South-
erners eventually claimed that the con-
stitutional 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 rec-
ognized 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 auto-
matically emancipated, and that slav-
ery was unconstitutional on the high
seas and in the territories.
None of this appears in Feldman’s ac-
count of slavery and the Constitution.
He claims that “Northerners could
not quote the Constitution to oppose
slavery, because the Constitution saidnothing against the practice.” Instead
they were forced to rely on the airy
platitudes about fundamental human
equality in the Declaration of Indepen-
dence, “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 Con-
gress 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 lib-
erty 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 lib-
erty” to everyone. It is certainly true
that opponents of slavery—not least
of them Lincoln—always recited the
words of the Declaration of Indepen-
dence, but they argued that the prin-
ciple of fundamental human equality
was “embedded” in the Constitution.
There are several references to the
Constitution in the Republican Party
platform on which Lincoln ran for
president.
It would be one thing if Feldman ar-
gued, on originalist grounds, that the
defenders of slavery had the better case.
Perhaps Chief Justice Roger Taney was
right when he claimed that the Con-
stitution “expressly” protected slaves
as property and that as such they were
not entitled to the due process rights of
legal persons in the free states or ter-
ritories. There are reputable scholars
who make this sort of argument. By
this reasoning Lincoln and his fellow
antislavery constitutionalists might
have been on the right side of history,
but the “original” Constitution was the
proslavery atrocity that the abolitionist
William Lloyd Garrison denounced.
One problem with Garrison’s sort of
originalism is that the original meaning
of the Constitution, certainly with re-
gard to slavery, was contested from the
earliest years of the republic. During
the debates over its ratification, the
Constitution’s proslavery opponents
often denounced it as an existential
threat to slavery, and its antislavery
supporters sometimes hailed it as a
harbinger of slavery’s abolition. Still
others defended or denounced it be-
cause it protected slavery. Yet Feldman
barely mentions these conflicting inter-
pretations in The Broken Constitution.
Antislavery constitutionalism was the
majority view among northerners, but
Feldman restricts it to a tiny group of
misguided radicals and quickly hurries
them offstage to make room for those
who believed the Constitution was
thoroughly compromised by its pro-
tections for slavery—among them Lin-
coln, whose proslavery reading of the
document was in Feldman’s view more
historically accurate.By disregarding the substantial con-
flict over the Constitution, Feldman
frees himself to discount the origins
of wartime antislavery policy. He be-
gins with Lincoln’s promise not to
“interfere” with slavery in the states
where it existed, a promise known to
scholars as the “federal consensus”because nearly everyone—from Gar-
rison to the fiercely proslavery John
C. Calhoun—agreed that the federal
government could not interfere with
(that is, abolish) slavery in a state, any
more than it could interfere with eman-
cipation in a state. Like marriage and
indentured servitude, slavery was a
state institution. But the federal con-
sensus did not prevent Congress from
attacking slavery indirectly in a va-
riety of ways. Republican Party plat-
forms across the northern states were
replete with endorsements of a host of
federal policies designed, in Lincoln’s
words, to put slavery “in the course
of ultimate extinction.” Rather than
explore the implications of Lincoln’s
utterly conventional avowal of feder-
alism, however, Feldman misleadingly
paraphrases it as a promise “to protect
slavery.”
But promising not to abolish slav-
ery in a state was not the same thing
as promising to protect it. By the time
Lincoln became president, he had en-
dorsed the complete ban on slavery in
the territories, drafted legislation to
abolish slavery in Washington, called
for aggressive suppression of the ille-
gal slave trade, and suggested revising
the fugitive slave law to protect the due
process rights of accused fugitives. In
1859 he warned that if slave states se-
ceded from the Union, they would for-
feit their constitutional right to recover
their fugitive slaves, and he repeated
this warning in his first inaugural ad-
dress. Secede from the Union, Lin-
coln declared, and your fugitive slaves,
“now only partially surrendered, would
not be surrendered at all.” None of this
suggests that Lincoln came into office
promising to “protect slavery.”
Most significantly, Lincoln forcefully
rejected the claim that the Constitution
recognized slave ownership as a right
of property. This was one of the cen-
tral themes of his famous speech at the
Cooper Institute in early 1860, which
helped him secure the Republican Par-
ty’s nomination as president later that
year. Southerners asserted a right to
bring their slave property into the terri-
tories, but the Constitution “is literally
silent about any such right,” Lincoln
declared. “We, on the contrary, deny
that such a right has any existence in
the Constitution.” Nowhere does the
Constitution refer to slaves as property,
Lincoln went on. Instead, “wherever in
that instrument the slave is alluded to,
he is called a ‘person.’”
It’s hard to imagine how Lincoln
could have been clearer. Yet Feldman
completely ignores his emphatic repu-
diation of “property in man” and in-
stead dismisses the speech as “strange,”
“fairly bland,” based on “mildly ten-
dentious legal reasoning,” and an “odd
performance.” Feldman goes on to
imply that the Constitution recognized
slaves as property and, inexplicably, at-
tributes that view to Lincoln. This is at
best misleading. Everyone knew that to
be a slave was to be defined in south-
ern state law as property—as chattel
personal. What Lincoln and nearly all
opponents of slavery insistently de-
nied was that slaves were recognized as
property in constitutional law.
Southern secessionists had a clear
understanding of who they were
up against. They scorned Lincoln’s
promise not to “interfere” with slav-
ery directly because he and his fel-
low Republicans were simultaneously
promising to interfere with slavery(^1) Sean Wilentz, No Property in Man:
Slavery and Antislavery at the Nation’s
Founding (Harvard University Press,
2018), chapter 2.
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