62 The New York Reviewqualified recipients of compensatory
payments; and most daunting of all,
how to overcome the fact, as Dalton
Conley writes in his contribution to
Politics and the Past, that “reparations
combine two policies that have beenwildly unpopular in American political
culture: taxes and group preferences.”
The reparations debate is nonethe-
less imperative for building public
recognition of the devastating histor-
ical experience of Black Americansduring the era of slavery and long after.
The social theorist John Torpey, who
writes with uncommon nuance about
the theory and practice of repara-
tions, has expressed doubt that today’s
“swelling attention to the iniquitouspast” will do much to secure a better
future. It’s a fair warning. Still, in the
narrower setting of colleges and uni-
versities, it is encouraging that the veil
has been lifted from a scandal long hid-
den or shrugged off. QTo the Editors:James Oakes’s review of my book The Bro-
ken Constitution [NYR, May 12] is a case
study in whitewashing the central role of
race and slavery in the history of the US
Constitution. Like other work by Oakes
and his fellow hagiographers, the review
systematically distorts or suppresses incon-
trovertible facts of law and history. Theirs
is an exercise in denying the explicit and
express protection of slavery in the original
Constitution and bowdlerizing Lincoln’s
consistent record of supporting and uphold-
ing the constitutional guarantee of slavery
throughout his public career, even after he
became president. Their twin dogmas are
that the framers cannot have supported race
slavery and that Lincoln’s Emancipation
Proclamation therefore cannot have broken
the Constitution. The trouble with these
reassuring- sounding dogmas is that they are
legally and historically false. And falsehood,
particularly falsehood that denies the reali-
ties of historical racism, cannot serve as the
basis for a usable past, whatever may be be-
lieved by an aging generation of would- be
guardians of the American myth.
The Constitution of 1787 enshrined
slavery in the three- fifths clause, in the
unamendable guarantee that the slave
trade would be allowed for at least twenty
years more, and most brutally in the fugi-
tive slave clause, which bound even free
states to obey the laws of slave states by
using their own legal systems to return to
bondage enslaved persons who managed to
escape their shackles. The document, obvi-
ously, thus contained no guarantee of equal
protection anywhere, including the Bill of
Rights. As Alexander Hamilton told the
New York ratifying convention with regard
to the three- fifths deal, all this was a neces-
sary “accommodation” struck in Philadel-
phia: “Without this indulgence, no union
could possibly have been formed.”
It may seem astounding that, a quarter of
the way through the twenty- first century,
anyone would still be trying to deny that
these constitutional provisions enshrining
slavery made it the law of the land under
the supremacy clause of the Constitution.
But that is just what the review does, cit-
ing Sean Wilentz’s apologia No Property in
Man (2018) for the claim that some slave-
holders sought a still more explicit guaran-
tee than the fugitive slave clause at the Phil-
adelphia convention. Oakes writes, “Years
later...southerners claimed that the fu-
gitive slave clause vested owners with the
very right they had been denied in 1787.”
This reasoning is either legally ignorant,
Orwellian doubletalk, or maybe both. The
fugitive slave clause explicitly and inher-
ently guaranteed slaveholders’ legal right
to the return of their enslaved human prop-
erty. It did not deny that right.
As a matter of his own political faith,
Lincoln embraced the Constitution of 1787,
and with it the slavery compromise. In 1838,
as a young politician, he inveighed against
would- be dictators who would seek fame
“at the expense of emancipating slaves, or
enslaving freemen.” In his first inaugural
address (the one that isn’t on the Lincoln
Memorial), he stated bluntly, “I have no
purpose, directly or indirectly, to interfere
with the institution of slavery in the states
where it exists. I believe I have no lawful
right to do so, and I have no inclination to
do so.”
In perhaps the most stunning passage in
a review studded with misrepresentationsand outright falsehoods,* Oakes simply
pretends that Lincoln’s explicit promise
was never made. He mentions the inau-
gural speech, points to Lincoln’s repeated
warning to seceding states that without the
Union their fugitive slaves would not be re-
turned, and concludes, “None of this sug-
gests that Lincoln came into office promis-
ing to ‘protect slavery.’” In fact, the passage
I quoted literally does say that. Lincoln was
also literally saying that if the slave states
remained in the Union, the northern states
would return their fugitive slaves. Stronger
evidence of bad- faith, bad- history apolo-
getics could hardly be imagined.
There is more— much more, all of it ap-
parently intended to discredit by distortion.
Contra Oakes’s first sentence, I do not “be-
lieve” the Confederate states had a consti-
tutional right to secede, nor does my book
say so. Far from “barely mention[ing]” anti-
slavery constitutionalism, I discuss the sub-
ject at great length, explicating the views of
Federick Douglass, Angelina Grimké, Wil-
liam Lloyd Garrison, Lysander Spooner,
and adding to the literature the voices of
less well-known Black abolitionists like
Charles Lenox Remond, William Howard
Day, and Hezekiah Ford Douglas.
Oakes says I endorse “the views of pro-
slavery Confederates,” but he knows this
is a lie. I extensively discuss (over four full
pages!) the opinion of Supreme Court Jus-
tice Benjamin Curtis, a Boston man who
had dissented in Plessy v. Ferguson and wrote
a long pamphlet explaining the unconstitu-
tionality of the Emancipation Proclamation.
Oakes also accuses me of calling Lincoln a
dictator, as though this were a sacrilegious
insult rather than the subject of pages of
close analysis. But it was Lincoln himself
who, six months into his presidency and a
year before issuing his draft of the Eman-
cipation Proclamation, stated that military
emancipation was “simply ‘dictatorship.’”
One assertion in the review is (almost)
true: “Feldman...ignores the long- standing
American consensus in support of military
emancipation.” My book precisely chal-
lenges the old, now- crumbling consensus
that “supports” the suppression of the
truth that the Constitution enshrined slav-
ery and that the Emancipation Proclama-
tion had to break the Constitution to end
it. Lincoln’s greatness is that, in the cruci-
ble of war, he changed his mind about the
constitutional compromise broken by se-
cession, broke the Constitution by eman-
cipation, and opened the door to the moral
Constitution of the Reconstruction amend-
ments. Denying the constitutional legacy
of race slavery disserves our own capacity
to imagine the necessity of constitutional
change when it is required by circumstance
and moral judgment.Noah Feldman
Harvard University
Cambridge, MassachusettsJames Oakes replies:Noah Feldman takes the title of his book as
well as its opening epigraph from an 1850
speech by Jefferson Davis bewailing the
flood of antislavery “fanaticism and igno-rance” that had “broken” the Constitution.
What follows is a book that reaffirms Da-
vis’s belief that, contrary to those antislavery
fanatics, the Constitution was a thoroughly
proslavery document. Like Davis, Feldman
goes on to claim that Lincoln was a dictator,
that secession was constitutional, and that
the Emancipation Proclamation was ille-
gal. Feldman may protest, but by invoking
the president of the Confederate States of
America and parroting his views Feldman
leaves himself open to the charge that he
has revived long- discredited Confederate
interpretations of the Civil War era.
As for me and my fellow apologists and
“hagiographers”: neither I nor any histo-
rian I know of “suppresses” the compro-
mises with slavery made at the Constitu-
tional Convention. In a book I published
only a year ago, I described the three- fifths
and fugitive slave clauses as the bone and
sinew of the proslavery reading of the Con-
stitution, a reading that proved disastrously
influential on both domestic and foreign
policy. What I have also not suppressed,
however, is the conflict between proslavery
and antislavery delegates that resulted in
crucial victories and defeats for both sides.
From their victories the opponents of
slavery fashioned a robust antislavery in-
terpretation of the Constitution—its refer-
ence to slaves as persons; its authorization
of Congress to ban slavery from the terri-
tories, to halt the importation of enslaved
Africans, to abolish slavery in Washing-
ton, D.C., and to secure due process rights
for accused fugitives—an interpretation
widely embraced by the northern major-
ity leading into the Civil War. In his book,
and again in his letter, Feldman erases this
antislavery interpretation of the Consti-
tution. In the process, decades of conflict
over slavery are rendered invisible, indeed
in com pre hen sible.
I noted in my review that Feldman says
nothing about the central importance of
federalism in the debates over slavery, with
the result that he misunderstands both the
significance and the conventionality of
Lincoln’s promise not to “interfere” with
slavery in the states where it existed. Feld-
man claims that I ignore Lincoln’s promise,
despite my explicit reference to it in the
review and my extended accounts of it in
my last three books. It is more than a little
ironic that in a letter fulminating against
the proslavery Constitution Feldman con-
tinues to disregard the fact that federalism
restricted the scope of antislavery politics
far more powerfully than did the fugitive
slave and three- fifths clauses.
In his letter Feldman invokes the suprem-
acy clause in a way that once again presup-
poses a Constitution devoid of antislavery
elements. This raises questions. Could an
individual state reject federal supremacy
by reopening the slave trade once Con-
gress had shut it down? If the Constitution
nationalized slavery, did the supremacy
clause preclude New York from passing an
abolition statute in 1797? In a Constitution
that deliberately refers to slaves as persons
rather than property—one of those incon-
trovertible facts Feldman cannot contro-
vert—did the supremacy clause not thereby
dictate that accused fugitives be afforded
the rights of due process guaranteed to all
“persons” by the Fifth Amendment?No less ironic is Feldman’s refusal to rec-
ognize the fact that in wartime the federal
government claimed constitutional pow-ers to interfere with slavery that it did not
have in peacetime. Alexander Hamilton,
Edmund Randolph, John Jay—indeed, just
about every one of the Founders who went
on record—affirmed that under the law
of nations belligerents could emancipate
enemy slaves in an effort to win a war or
suppress a rebellion.
Feldman boasts of the four pages he de-
votes to a pamphlet questioning the legality
of the Emancipation Proclamation, but he
continues to ignore the sustained defenses
of emancipation put forward by distin-
guished legal scholars during the war. Once
again, the constitutional conflict is erased.
Likewise, he disregards the implications of
the Supreme Court’s endorsement of the
president’s war powers in the Prize Cases
in a decision handed down in the midst of
the war itself.
By steadfastly averting his gaze from
the tension between what the government
could do in peacetime and what it could
do in wartime, Feldman allows himself to
claim that with the Emancipation Procla-
mation Lincoln changed his mind about
the Constitution. The result is another set
of blunders. He garbles Lincoln’s denuncia-
tion of a Union general for making his own
policy by fiat, which Lincoln denounced as
“military despotism” but which Feldman
misquotes as “military emancipation.” He
claims that with the Emancipation Proc-
lamation Lincoln abandoned the federal
consensus, yet Lincoln openly invoked it
in 1864 and warned his fellow Republicans
not to abandon the principle that Congress
could not abolish slavery in a state.
Once we acknowledge the conflicts over
slavery dating back to the earliest years of
the republic, the fates of slavery and racial
injustice can be seen more clearly as a mat-
ter of the shifting balance of political power.
The question was which interpretation of
the Constitution would prevail. From the
1780s to the Civil War, northern majori-
ties in the House of Representatives voted
against slavery 95 percent of the time, often
to no avail because the Senate, the Supreme
Court, and the executive branch were domi-
nated by supporters of the proslavery inter-
pretation of the Constitution. But in 1860,
with the election of Lincoln and the subse-
quent secession of eleven slave states, the
balance of power shifted decisively in favor
of the antislavery tradition that, according
to Jefferson Davis, had already broken the
Constitution a decade earlier.
In refusing to acknowledge that tradition,
Noah Feldman registers the conceit, all too
common these days, that his is the first gen-
eration of white Americans to denounce
racism and slavery. A bit less arrogance
and a bit more modesty would seem to be
in order. It would make for better history
and, quite possibly, the more usable past
he’s looking for.‘Was Emancipation Constitutional?’: An Exchange
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Copyright © 2022, NYREV, Inc. All rights reserved.
Nothing in this publication may be reproduced with-
out the permission of the publisher. The cover date of
the next issue will be July 21, 2022.*Nearly every time Oakes says the book
“ignored” something (and there are many),
it is the subject of extended discussion,
often of many pages. If Oakes himself did
not read the book, the fact- checkers ought
to have done it for him.DelbancoLetters 59 _ 62 .indd 62 5 / 26 / 22 4 : 36 PM