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The Broken Constitution: Lincoln, Slavery, and the Refounding of America
A New York Times Book Review Editors' Choice
An innovative account of Abraham Lincoln, constitutional thinker and doer
Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution--a system he regarded as the "last best hope of mankind." But how did Lincoln understand the Constitution?
In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States' founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution's place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact--a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text--a transcendent statement of the nation's highest ideals.
The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them--and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln's Republican rivals and Secessionist ideologues.
Includes 8 Pages of Black-and-White Illustrations
An innovative account of Abraham Lincoln, constitutional thinker and doer
Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution--a system he regarded as the "last best hope of mankind." But how did Lincoln understand the Constitution?
In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States' founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution's place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact--a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text--a transcendent statement of the nation's highest ideals.
The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them--and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln's Republican rivals and Secessionist ideologues.
Includes 8 Pages of Black-and-White Illustrations
384 pages, Hardcover
First published November 2, 2021
91 people are currently reading
860 people want to read
About the author
Noah Feldman
31 books206 followersNoah Feldman is an American author and professor of law at Harvard Law School.
Feldman grew up in Boston, Massachusetts, where he attended the Maimonides School. He graduated from Harvard College in 1992, ranked first in the College, and earned a Rhodes Scholarship to Oxford University, where he earned a D.Phil in Islamic Thought in 1994. Upon his return from Oxford, he received his J.D., in 1997, from Yale Law School, where he was the book review editor of the Yale Law Journal. He later served as a law clerk for Associate Justice David Souter on the U.S. Supreme Court.
In 2001, he joined the faculty of New York University Law School (NYU), leaving for Harvard in 2007. In 2008, he was appointed the Bemis Professor of International Law. He worked as an advisor in the early days of the Coalition Provisional Authority in Iraq following the 2003 invasion of the country. He regularly contributes features and opinion pieces to The New York Times Magazine and is a senior adjunct fellow at the Council on Foreign Relations.
Feldman grew up in Boston, Massachusetts, where he attended the Maimonides School. He graduated from Harvard College in 1992, ranked first in the College, and earned a Rhodes Scholarship to Oxford University, where he earned a D.Phil in Islamic Thought in 1994. Upon his return from Oxford, he received his J.D., in 1997, from Yale Law School, where he was the book review editor of the Yale Law Journal. He later served as a law clerk for Associate Justice David Souter on the U.S. Supreme Court.
In 2001, he joined the faculty of New York University Law School (NYU), leaving for Harvard in 2007. In 2008, he was appointed the Bemis Professor of International Law. He worked as an advisor in the early days of the Coalition Provisional Authority in Iraq following the 2003 invasion of the country. He regularly contributes features and opinion pieces to The New York Times Magazine and is a senior adjunct fellow at the Council on Foreign Relations.
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March 22, 2022
I am not a historian, or a constitutional law expert, or a Lincoln scholar. And I hope I’m not just some self-proclaimed know-it-all who presumes to know more than a Harvard law professor, noted constitutional thinker and author of a number of scholarly books. So feel free to take my long-winded, amateur opinions with a grain of salt.
But boy, did I have problems with this book.
Noah Feldman’s main argument is that Abraham Lincoln irrevocably, permanently “broke” the original Constitution by repeatedly violating it as he waged war and sought to end slavery, ultimately replacing the “old” Constitution with a new and improved one. “The first Constitution” was “an enterprise that ultimately failed,” he posits. “It did not recover. It was remade in the aftermath of the war into something new and different.”
Feldman’s argument is provocative, his description of the thorny legal and political issues that Lincoln confronted are thorough, his soaring conclusion is inspirational - but the facts he cites in getting there are often muddled, elided or just plain wrong.
The first two chapters boil down to: the Constitution as ratified contained compromises over slavery, the Kansas-Nebraska Act and the Dred Scott decision blew up those compromises, and Lincoln vowed to repair the rift. Not altogether complicated concepts, but Feldman gets into long, granular, lawyerly detail, citing contemporary opinions about whether the Constitution was a pro- or anti-slavery document, whether its compromises were a strength or a weakness, and whether it ought to be amended or abolished. It turns into a very long way of explaining that the Constitution as ratified contained compromises over slavery, the Kansas-Nebraska Act and the Dred Scott decision blew up those compromises, and Lincoln vowed to repair the rift.
Finally, then, we get into Feldman’s main argument, in three parts: Lincoln “broke” the Constitution by 1. going to war, 2. suspending habeas corpus, and 3. freeing the slaves.
First, Feldman considers Lincoln’s assessment that secession and the firing on Fort Sumter was an act of rebellion, for which the proper response was armed force to put down that rebellion. Feldman calls this a “radical reinterpretation” of the Constitution, largely by contrasting Lincoln’s views with those of the Buchanan administration, which weakly concluded that secession was unconstitutional, but that there was no constitutional way to prevent it. Trying to frame Lincoln’s actions as unconstitutional presumes that Buchanan’s feeble argument was actually correct. In doing so, Feldman suggests that the only constitutional options Lincoln had were to ask Congress to declare war, which would only legitimize secession by treating the Confederacy as a separate country, or to do nothing and let the Confederacy go. He doesn’t consider that it was constitutionally possible, and indeed responsible, for the commander in chief to respond to a rebellion without first seeking permission by calling Congress into session to declare that a state of rebellion existed (and by the time Congress did assemble, it didn’t object to Lincoln’s decision). Since Lincoln chose the latter option instead of either of the former options, Feldman declares it to be the first step in Lincoln’s permanent “breaking” of the Constitution.
Feldman even goes so far as to compare Lincoln’s decision to resupply Fort Sumter, with James K. Polk’s decision to provoke war with Mexico in 1846, an act that Lincoln had opposed. Resupplying the fort was "an action that he knew would provoke a Confederate bombardment," Feldman alleges, suggesting that Lincoln hypocritically precipitated a war and provoked the enemy to start it, in the same way that he criticized Polk for doing. This disregards the fact that merely resupplying the fort was just about the least aggressive move Lincoln could have made, short of total capitulation and giving up the fort. And it unfairly tags Lincoln as being a hypocrite in his earlier criticisms of the Mexican-American War by, supposedly, purposely and blatantly starting a war in exactly the same way.
(Feldman later accuses Lincoln of hypocrisy again, stating that his decision to send martial law detainee Clement Vallandigham "beyond Union lines" into the Confederacy "admitted the hypocrisy of insisting that secession had been constitutionally unsuccessful." Which it didn’t really.)
The next part of the book considers Lincoln’s suspension of habeas corpus during the war. Historical precedent and the location of the suspension clause in the Constitution raise a number of ambiguities about whether the president or only Congress has the power of suspension.
A very insightful essay by James A. Dueholm, which Feldman cites briefly in an endnote, states that "the president can wage war against rebels and invaders without a congressional declaration of war,” and suspending habeas corpus is a tool the president is empowered to use to wage such a war. “It would be an absurd reading of the Constitution,” he goes on, “to conclude that the president needs congressional authority to deploy a constitutional weapon designed specifically for use in wars that the president can wage without congressional authority."
Feldman, however, doesn’t consider this argument, instead conclusively declaring that "the president almost certainly lacked the constitutional authority" to suspend habeas corpus. Lincoln himself wrote that “the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together.” Once Congress did convene, when Lincoln did not immediately seek congressional approval, Feldman declares that "unilateral executive suspension could no longer be justified as an emergency interim measure... Lincoln was now violating the Constitution." This, then, becomes the supposed second step in Lincoln’s permanent “breaking” of the Constitution.
Then we get to the issue of slavery, perhaps the most problematic part of the book in my reading. Feldman continually conflates emancipation with abolition, treating freeing slaves and permanently ending the very institution of slavery as the same thing, when it was always entirely possible to do one without the other. (Emancipation "meant that... slavery would be abolished in the states of the former Confederacy," he writes incorrectly. Later, similarly, he observes that “if Confederate slaves were freed 'forever,' there would be no slavery in the former Confederate states when and if they rejoined the Union.")
Feldman also buys into the old canard that the purpose of the Civil War “shifted” over time from a war to preserve the Union, to a war to end slavery. But in doing so, he actually takes it further and claims that the purpose shifted from a war over slavery, to a war to preserve the Union, then back to a war over slavery. He does this by claiming Secretary of State William Seward convinced Lincoln to “change the narrative of the conflict from being about slavery to being about the preservation of the Union," by citing Seward’s presumptuous, wrongheaded April 1861 memo advising that "we must change the question before the public from one upon slavery, or about slavery, for a question upon union or disunion." He omits the fact that Seward’s proposed strategy was actually to appease the South by abandoning Fort Sumter in order to preserve the Union and not allow the issue of slavery to divide the country. He also omits Lincoln’s response, in which Lincoln disputed that the purpose of the war was ever about slavery, dismissing Seward’s advice by saying "I do not perceive how the re-inforcement of Fort Sumpter (sic) would be done on a slavery, or party issue".
Going forward, Feldman observes that "Union came first; freedom for African Americans a distant second. Emancipation represented a total reversal of this hierarchy of values." But Lincoln and his Republican allies never put preserving the Union second. Emancipation was a means to an end - a way to end the war and preserve the Union. As James Oakes explains in Freedom National: The Destruction of Slavery in the United States, 1861-1865, slavery was the “cause” of the war, ending slavery was a hoped-for outcome, but preserving the Union was the war’s “purpose.” And that never changed.
In trying to prove that the purpose of the war did, in fact, change, Feldman contrasts Lincoln’s response to Major General John Frémont’s 1861 emancipation order in Missouri, to Lincoln’s own later Emancipation Proclamation. Lincoln reversed Frémont’s order because he believed "permanent emancipation was not lawful," Feldman claims. But he fails to consider that Lincoln’s objections centered on the facts that Frémont overstepped his authority in making policy that was not a military leader’s decision to make, and that he did so in a border state that was still officially loyal to the Union. If, when, and where widespread emancipation was to be set into motion, Lincoln was asserting, it would be a political leader’s decision to make, not a military leader’s. Not because Lincoln doubted its legitimacy or constitutionality - because, by this time, emancipation was already happening.
When Lincoln does eventually issue the more wide-reaching Emancipation Proclamation, Feldman outright declares that “he was subverting" the Constitution, with "a fundamental violation" of the compromises that had to that point been observed, "transforming the meaning of the Civil War itself" in the process. But emancipating slaves as a military measure was very different from abolishing slavery. Lincoln never claimed he could constitutionally abolish slavery. And the only constitutional arguments against emancipation were those that recognized the right of property in man, which Lincoln never accepted (even though Feldman wrongly claims that Lincoln had earlier “purported to believe that slaves were private property"). Historians like Oakes and Sean Wilentz note that it’s no accident the Constitution refers to slaves as people and not property. In his The Three Lives of James Madison: Genius, Partisan, President, Feldman himself quotes Madison as saying at the Constitutional Convention that he “thought it wrong to admit in the constitution the idea that there could be property in men.”
Feldman goes on to say Lincoln’s Emancipation Proclamation represented "an extraordinary transformation in his beliefs about the meaning of the Constitution" and says he “tried to claim, implausibly, that his views had not changed," when his views on slavery, and the limits of his constitutional power in regard to ending slavery, had not in fact changed. Feldman later hyperbolically claims that the Proclamation and the ensuing Gettysburg Address were "nothing short of a transformation of the meaning of the war... It was now a war to end slavery." Yet even after the Proclamation, and after the end of the war, slavery was not abolished. States abolished slavery themselves one by one, and their ratification of the 13th Amendment made it federal policy. None of this would have happened had the Union not first been preserved, hence its immutable primacy as the war’s purpose. Emancipation helped bring about abolition - both of them, constitutionally. To Feldman, though, emancipation was the third and ultimate step in Lincoln’s permanent “breaking” of the Constitution.
(For good measure, Feldman raises the issue of hypocrisy once again, cynically suggesting that, in the Emancipation Proclamation, Lincoln only reluctantly permitted freed slaves to enlist in the military to avoid being hypocritical, since ”the decision to frame emancipation as a war measure made it more or less necessary.” He doesn’t mention that allowing Black soldiers to serve was a commonsense military decision that was also already authorized by the Militia Act at that point.)
Feldman concludes his argument by positioning the 13th Amendment as retroactively justifying and enshrining the Emancipation Proclamation as constitutional law, instead of more rightfully positioning the Proclamation as paving the way for the Amendment. At this point, the simple argument against Feldman’s claim that Lincoln broke the old Constitution and replaced it with a brand new Constitution, is that he really just advocated for an amendment to improve the existing Constitution. An amended Constitution is not really a “new” Constitution, even though Feldman concludes that a “failure of the compromise” Constitution was a “failure of the Constitution” itself, so it had to be replaced by a “moral Constitution.” A slightly more complex argument against Feldman’s claim would be that emancipation, abolition and the 13th Amendment were not signs of a failed Constitution, but a victory for what should have been the proper reading of the Constitution all along - that it never established a right of property in man, and that the Constitution was a compact that could not so easily be broken by secessionists. If Lincoln truly wanted to break and disregard the Constitution in order to bring about the end of slavery, it would have been a lot easier for him to simply do it by edict rather than by the careful, pragmatic and constitutional path he ultimately followed.
Throughout the book, Lincoln comes under such scrutiny for supposedly acting unconstitutionally, it seems incongruous at the end when Feldman wholeheartedly comes down on Lincoln’s side. He saved the Union, he brought about the end of slavery, and put the country on a more righteous and moral course. So Feldman’s conclusion is laudable, and his introduction of the issues at play is satisfactory. But too much of what’s in between is simply fallacious, misconstrued, poorly argued, or all of the above. I thought Feldman’s biography of James Madison and the creation of the Constitution was excellent. So it’s a shame that, to me, his attempt to look at Lincoln through a similar constitutional lens just really missed the mark.
But boy, did I have problems with this book.
Noah Feldman’s main argument is that Abraham Lincoln irrevocably, permanently “broke” the original Constitution by repeatedly violating it as he waged war and sought to end slavery, ultimately replacing the “old” Constitution with a new and improved one. “The first Constitution” was “an enterprise that ultimately failed,” he posits. “It did not recover. It was remade in the aftermath of the war into something new and different.”
Feldman’s argument is provocative, his description of the thorny legal and political issues that Lincoln confronted are thorough, his soaring conclusion is inspirational - but the facts he cites in getting there are often muddled, elided or just plain wrong.
The first two chapters boil down to: the Constitution as ratified contained compromises over slavery, the Kansas-Nebraska Act and the Dred Scott decision blew up those compromises, and Lincoln vowed to repair the rift. Not altogether complicated concepts, but Feldman gets into long, granular, lawyerly detail, citing contemporary opinions about whether the Constitution was a pro- or anti-slavery document, whether its compromises were a strength or a weakness, and whether it ought to be amended or abolished. It turns into a very long way of explaining that the Constitution as ratified contained compromises over slavery, the Kansas-Nebraska Act and the Dred Scott decision blew up those compromises, and Lincoln vowed to repair the rift.
Finally, then, we get into Feldman’s main argument, in three parts: Lincoln “broke” the Constitution by 1. going to war, 2. suspending habeas corpus, and 3. freeing the slaves.
First, Feldman considers Lincoln’s assessment that secession and the firing on Fort Sumter was an act of rebellion, for which the proper response was armed force to put down that rebellion. Feldman calls this a “radical reinterpretation” of the Constitution, largely by contrasting Lincoln’s views with those of the Buchanan administration, which weakly concluded that secession was unconstitutional, but that there was no constitutional way to prevent it. Trying to frame Lincoln’s actions as unconstitutional presumes that Buchanan’s feeble argument was actually correct. In doing so, Feldman suggests that the only constitutional options Lincoln had were to ask Congress to declare war, which would only legitimize secession by treating the Confederacy as a separate country, or to do nothing and let the Confederacy go. He doesn’t consider that it was constitutionally possible, and indeed responsible, for the commander in chief to respond to a rebellion without first seeking permission by calling Congress into session to declare that a state of rebellion existed (and by the time Congress did assemble, it didn’t object to Lincoln’s decision). Since Lincoln chose the latter option instead of either of the former options, Feldman declares it to be the first step in Lincoln’s permanent “breaking” of the Constitution.
Feldman even goes so far as to compare Lincoln’s decision to resupply Fort Sumter, with James K. Polk’s decision to provoke war with Mexico in 1846, an act that Lincoln had opposed. Resupplying the fort was "an action that he knew would provoke a Confederate bombardment," Feldman alleges, suggesting that Lincoln hypocritically precipitated a war and provoked the enemy to start it, in the same way that he criticized Polk for doing. This disregards the fact that merely resupplying the fort was just about the least aggressive move Lincoln could have made, short of total capitulation and giving up the fort. And it unfairly tags Lincoln as being a hypocrite in his earlier criticisms of the Mexican-American War by, supposedly, purposely and blatantly starting a war in exactly the same way.
(Feldman later accuses Lincoln of hypocrisy again, stating that his decision to send martial law detainee Clement Vallandigham "beyond Union lines" into the Confederacy "admitted the hypocrisy of insisting that secession had been constitutionally unsuccessful." Which it didn’t really.)
The next part of the book considers Lincoln’s suspension of habeas corpus during the war. Historical precedent and the location of the suspension clause in the Constitution raise a number of ambiguities about whether the president or only Congress has the power of suspension.
A very insightful essay by James A. Dueholm, which Feldman cites briefly in an endnote, states that "the president can wage war against rebels and invaders without a congressional declaration of war,” and suspending habeas corpus is a tool the president is empowered to use to wage such a war. “It would be an absurd reading of the Constitution,” he goes on, “to conclude that the president needs congressional authority to deploy a constitutional weapon designed specifically for use in wars that the president can wage without congressional authority."
Feldman, however, doesn’t consider this argument, instead conclusively declaring that "the president almost certainly lacked the constitutional authority" to suspend habeas corpus. Lincoln himself wrote that “the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together.” Once Congress did convene, when Lincoln did not immediately seek congressional approval, Feldman declares that "unilateral executive suspension could no longer be justified as an emergency interim measure... Lincoln was now violating the Constitution." This, then, becomes the supposed second step in Lincoln’s permanent “breaking” of the Constitution.
Then we get to the issue of slavery, perhaps the most problematic part of the book in my reading. Feldman continually conflates emancipation with abolition, treating freeing slaves and permanently ending the very institution of slavery as the same thing, when it was always entirely possible to do one without the other. (Emancipation "meant that... slavery would be abolished in the states of the former Confederacy," he writes incorrectly. Later, similarly, he observes that “if Confederate slaves were freed 'forever,' there would be no slavery in the former Confederate states when and if they rejoined the Union.")
Feldman also buys into the old canard that the purpose of the Civil War “shifted” over time from a war to preserve the Union, to a war to end slavery. But in doing so, he actually takes it further and claims that the purpose shifted from a war over slavery, to a war to preserve the Union, then back to a war over slavery. He does this by claiming Secretary of State William Seward convinced Lincoln to “change the narrative of the conflict from being about slavery to being about the preservation of the Union," by citing Seward’s presumptuous, wrongheaded April 1861 memo advising that "we must change the question before the public from one upon slavery, or about slavery, for a question upon union or disunion." He omits the fact that Seward’s proposed strategy was actually to appease the South by abandoning Fort Sumter in order to preserve the Union and not allow the issue of slavery to divide the country. He also omits Lincoln’s response, in which Lincoln disputed that the purpose of the war was ever about slavery, dismissing Seward’s advice by saying "I do not perceive how the re-inforcement of Fort Sumpter (sic) would be done on a slavery, or party issue".
Going forward, Feldman observes that "Union came first; freedom for African Americans a distant second. Emancipation represented a total reversal of this hierarchy of values." But Lincoln and his Republican allies never put preserving the Union second. Emancipation was a means to an end - a way to end the war and preserve the Union. As James Oakes explains in Freedom National: The Destruction of Slavery in the United States, 1861-1865, slavery was the “cause” of the war, ending slavery was a hoped-for outcome, but preserving the Union was the war’s “purpose.” And that never changed.
In trying to prove that the purpose of the war did, in fact, change, Feldman contrasts Lincoln’s response to Major General John Frémont’s 1861 emancipation order in Missouri, to Lincoln’s own later Emancipation Proclamation. Lincoln reversed Frémont’s order because he believed "permanent emancipation was not lawful," Feldman claims. But he fails to consider that Lincoln’s objections centered on the facts that Frémont overstepped his authority in making policy that was not a military leader’s decision to make, and that he did so in a border state that was still officially loyal to the Union. If, when, and where widespread emancipation was to be set into motion, Lincoln was asserting, it would be a political leader’s decision to make, not a military leader’s. Not because Lincoln doubted its legitimacy or constitutionality - because, by this time, emancipation was already happening.
When Lincoln does eventually issue the more wide-reaching Emancipation Proclamation, Feldman outright declares that “he was subverting" the Constitution, with "a fundamental violation" of the compromises that had to that point been observed, "transforming the meaning of the Civil War itself" in the process. But emancipating slaves as a military measure was very different from abolishing slavery. Lincoln never claimed he could constitutionally abolish slavery. And the only constitutional arguments against emancipation were those that recognized the right of property in man, which Lincoln never accepted (even though Feldman wrongly claims that Lincoln had earlier “purported to believe that slaves were private property"). Historians like Oakes and Sean Wilentz note that it’s no accident the Constitution refers to slaves as people and not property. In his The Three Lives of James Madison: Genius, Partisan, President, Feldman himself quotes Madison as saying at the Constitutional Convention that he “thought it wrong to admit in the constitution the idea that there could be property in men.”
Feldman goes on to say Lincoln’s Emancipation Proclamation represented "an extraordinary transformation in his beliefs about the meaning of the Constitution" and says he “tried to claim, implausibly, that his views had not changed," when his views on slavery, and the limits of his constitutional power in regard to ending slavery, had not in fact changed. Feldman later hyperbolically claims that the Proclamation and the ensuing Gettysburg Address were "nothing short of a transformation of the meaning of the war... It was now a war to end slavery." Yet even after the Proclamation, and after the end of the war, slavery was not abolished. States abolished slavery themselves one by one, and their ratification of the 13th Amendment made it federal policy. None of this would have happened had the Union not first been preserved, hence its immutable primacy as the war’s purpose. Emancipation helped bring about abolition - both of them, constitutionally. To Feldman, though, emancipation was the third and ultimate step in Lincoln’s permanent “breaking” of the Constitution.
(For good measure, Feldman raises the issue of hypocrisy once again, cynically suggesting that, in the Emancipation Proclamation, Lincoln only reluctantly permitted freed slaves to enlist in the military to avoid being hypocritical, since ”the decision to frame emancipation as a war measure made it more or less necessary.” He doesn’t mention that allowing Black soldiers to serve was a commonsense military decision that was also already authorized by the Militia Act at that point.)
Feldman concludes his argument by positioning the 13th Amendment as retroactively justifying and enshrining the Emancipation Proclamation as constitutional law, instead of more rightfully positioning the Proclamation as paving the way for the Amendment. At this point, the simple argument against Feldman’s claim that Lincoln broke the old Constitution and replaced it with a brand new Constitution, is that he really just advocated for an amendment to improve the existing Constitution. An amended Constitution is not really a “new” Constitution, even though Feldman concludes that a “failure of the compromise” Constitution was a “failure of the Constitution” itself, so it had to be replaced by a “moral Constitution.” A slightly more complex argument against Feldman’s claim would be that emancipation, abolition and the 13th Amendment were not signs of a failed Constitution, but a victory for what should have been the proper reading of the Constitution all along - that it never established a right of property in man, and that the Constitution was a compact that could not so easily be broken by secessionists. If Lincoln truly wanted to break and disregard the Constitution in order to bring about the end of slavery, it would have been a lot easier for him to simply do it by edict rather than by the careful, pragmatic and constitutional path he ultimately followed.
Throughout the book, Lincoln comes under such scrutiny for supposedly acting unconstitutionally, it seems incongruous at the end when Feldman wholeheartedly comes down on Lincoln’s side. He saved the Union, he brought about the end of slavery, and put the country on a more righteous and moral course. So Feldman’s conclusion is laudable, and his introduction of the issues at play is satisfactory. But too much of what’s in between is simply fallacious, misconstrued, poorly argued, or all of the above. I thought Feldman’s biography of James Madison and the creation of the Constitution was excellent. So it’s a shame that, to me, his attempt to look at Lincoln through a similar constitutional lens just really missed the mark.
December 6, 2022
I gave this book 3 stars rather than the two I had planned to only because it had a strong conclusion. It feels very much like an anti-Lincoln screed to me. It also feels like Feldman came up with a thesis and conclusion and made the facts fit his beliefs.
The first example of this that comes to mind is the discussion about habeas corpus. For Feldman, the Constitution was very clear that only Congress could suspend habeas corpus. That is not true although it is contained in the same place that Congressional powers are enumerated, it does not specifically state it. If the Framers had wanted only Congress to suspend habeas, it surely would have said so. As it happened, Congress was out of session when the problems kicked up in Baltimore. Southern sympathizers were sabotaging the Union war effort, blowing up railroad tracks, rioting, interfering with the movement of Union soldiers. The Constitution clearly states that in times of war or rebellion, habeas could be suspended. Clearly, these conditions existed. Tany, who Feldman characterizes as pro-Union, gave the opinion that Lincoln did not have the power to do it. First, Tany was a Southern sympathizer and his actions bear that out. Moreover, when Congress came back into session, Lincoln submitted the issue to them and they expressed agreement with his actions. Feldman denies this at the same time quoting Congressional approval. He justifies his argument because they gave approval to "all" of his actions and did not single out habeas corpus.
Shutting down news papers was a legitimate complaint and an example where Lincoln does seem to overstepped his boundaries. He acknowledged that there were times when he had made mistakes but it does not make him the dictator that Feldman wants to paint. Would a dictator have approved of the election of 1864 going ahead? I think not. I could go on about the bias in this book for a very long time but I think my point has been made. I cannot recommend this book for the reasons stated above.
The first example of this that comes to mind is the discussion about habeas corpus. For Feldman, the Constitution was very clear that only Congress could suspend habeas corpus. That is not true although it is contained in the same place that Congressional powers are enumerated, it does not specifically state it. If the Framers had wanted only Congress to suspend habeas, it surely would have said so. As it happened, Congress was out of session when the problems kicked up in Baltimore. Southern sympathizers were sabotaging the Union war effort, blowing up railroad tracks, rioting, interfering with the movement of Union soldiers. The Constitution clearly states that in times of war or rebellion, habeas could be suspended. Clearly, these conditions existed. Tany, who Feldman characterizes as pro-Union, gave the opinion that Lincoln did not have the power to do it. First, Tany was a Southern sympathizer and his actions bear that out. Moreover, when Congress came back into session, Lincoln submitted the issue to them and they expressed agreement with his actions. Feldman denies this at the same time quoting Congressional approval. He justifies his argument because they gave approval to "all" of his actions and did not single out habeas corpus.
Shutting down news papers was a legitimate complaint and an example where Lincoln does seem to overstepped his boundaries. He acknowledged that there were times when he had made mistakes but it does not make him the dictator that Feldman wants to paint. Would a dictator have approved of the election of 1864 going ahead? I think not. I could go on about the bias in this book for a very long time but I think my point has been made. I cannot recommend this book for the reasons stated above.
June 9, 2025
The author makes his case that the Civil War not only changed history; it broke and remade it. This book focuses on Lincoln's struggle to run the country in the midst of civil disharmony and conflict. Along the way, we meet several of the prime movers and shakers of the story; Lincoln himself, obviously but also lesser known characters like Chief Justice Roger B. Taney. Overall, I really enjoyed the author's personal perspective as a former clerk for SCOTUS member David Souter.
November 18, 2021
An extraordinary nuanced niche analysis of Lincoln and his views and actions on the Constitution. I sure wouldn't recommend anyone just getting into the study of American history start here but I would whole heartedly recommend anyone who has a fascination with American Law, the slavery issue or Lincoln as a subject put this on their must read list.
I have studied closely the civil war, and the periods of history before and after but I have never read such a close examination of Lincoln on the subject of slavery before. I really appreciate the insight I gained by looking at this subject through the lens of a lawyer like Noah Feldman. He really gets in deep on why Lincoln said and acted the way he did always threading the needle as a politician and seemingly letting down at times people like myself some 150 years later at certain moments.
My reviews are usually meta-analysis on how I felt reading the books so let me get into that now. This book was thorough, it was an analysis on one subject broad enough. It opted for specifics and a deep understanding rather than readability and entertainment. Far from a dry text it is going for a thorough analysis and I appreciated it for that. Sometimes studying a subject is a bit of work but like I said this was far from a dry text. I enjoyed it and would highly recommend anyone else looking for a deeper understanding to give this one a shot.
I have studied closely the civil war, and the periods of history before and after but I have never read such a close examination of Lincoln on the subject of slavery before. I really appreciate the insight I gained by looking at this subject through the lens of a lawyer like Noah Feldman. He really gets in deep on why Lincoln said and acted the way he did always threading the needle as a politician and seemingly letting down at times people like myself some 150 years later at certain moments.
My reviews are usually meta-analysis on how I felt reading the books so let me get into that now. This book was thorough, it was an analysis on one subject broad enough. It opted for specifics and a deep understanding rather than readability and entertainment. Far from a dry text it is going for a thorough analysis and I appreciated it for that. Sometimes studying a subject is a bit of work but like I said this was far from a dry text. I enjoyed it and would highly recommend anyone else looking for a deeper understanding to give this one a shot.
November 1, 2022
Let me say right up front I am a big fan of Noah Feldman, as a writer, scholar, commentator. This book is a very different approach to Abraham Lincoln than any I have ever read. Feldman addresses the premise that Lincoln may have violated the Constitution in his pursuit of saving the Union and, ultimately, emancipating the slaves. Feldman examines and compares Lincoln’s original perspective on what he characterizes as our initial “compromise constitution,” based on slavery’s inclusion, and how he came to break it through his interpretation of its wording and intent in order to accomplish the result of that which Feldman describes as a “moral constitution” via the postwar 13th, 14th and 15th, or civil rights amendments.
The book assumes some the reader has a good grounding in both Lincoln and the Constitution and their respective histories. There is a fascinating description of the “compromise constitution” under which this country was founded, the rupture of the constitution by those states which seceded, the choice to go to war in the first place, political prisoners and the suspension of civil liberties and the writ of habeas corpus and, finally, emancipation. All of this leading to the “moral constitution” that resulted postwar and post-Lincoln’s assassination.
Feldman persuasively argues that Lincoln deliberately violated our founding documents when it came to federal power to prevent secession. Lincoln decisively broke precedent. His actions were ultimately ratified by Congress, yet he took it upon himself, at least initially when Congress was not in session, to make unilateral decisions and take those actions that he felt necessary in the circumstances—essentially, the Constitution be damned.
The result of many of Lincoln’s actions, constitutional or not, is that we may now have a “moral constitution” that has not yet reached its full potential of social and racial justice, but has also provided presidents since then with much unilateral power, as well as given the country a large and overarching federal government would have made the Founders shudder.
Feldman is an academic and this book to be understood and enjoyed requires a certain level of reading in both Lincoln, the Constitution, and Civil War History. Without that this book could be quite a slog. But otherwise this was an excellent analysis regardless of whether one may agree with the conclusions. I do!
The book assumes some the reader has a good grounding in both Lincoln and the Constitution and their respective histories. There is a fascinating description of the “compromise constitution” under which this country was founded, the rupture of the constitution by those states which seceded, the choice to go to war in the first place, political prisoners and the suspension of civil liberties and the writ of habeas corpus and, finally, emancipation. All of this leading to the “moral constitution” that resulted postwar and post-Lincoln’s assassination.
Feldman persuasively argues that Lincoln deliberately violated our founding documents when it came to federal power to prevent secession. Lincoln decisively broke precedent. His actions were ultimately ratified by Congress, yet he took it upon himself, at least initially when Congress was not in session, to make unilateral decisions and take those actions that he felt necessary in the circumstances—essentially, the Constitution be damned.
The result of many of Lincoln’s actions, constitutional or not, is that we may now have a “moral constitution” that has not yet reached its full potential of social and racial justice, but has also provided presidents since then with much unilateral power, as well as given the country a large and overarching federal government would have made the Founders shudder.
Feldman is an academic and this book to be understood and enjoyed requires a certain level of reading in both Lincoln, the Constitution, and Civil War History. Without that this book could be quite a slog. But otherwise this was an excellent analysis regardless of whether one may agree with the conclusions. I do!
December 10, 2021
The Broken Constitution is a history book that author Noah Feldman approaches like a lawyer. That is, his goal is to present the strongest case he can for his interpretation of the facts, without admitting into evidence (or in this case the text of his book) anything that might suggest to the reader the possibility of ambiguity. As an argument, this book is interesting at times, as a work of history it is disappointing. I will give a short summary of Feldman’s argument and then offer a couple examples of why I found Feldman’s approach to historical interpretation and evidence lackluster.
To briefly sum up Feldman’s argument, Abraham Lincoln was for much of his life devoted to the “compromise constitution,” an understanding of the constitution shared by many Americans in the nineteenth century that took the document to be a sort of work in progress that required the continual negotiation and compromise of all parties to keep its representative government functional. Beginning when Lincoln joined the Republican party and accelerating after his election and the outbreak of war, Feldman argues that Lincoln abandoned this view of the constitution, in favor of one in which he as the chief executive had nearly unlimited authority to ignore statutes, constitutional provisions, and the supreme court if he deemed it necessary to win the war. In doing so, Feldman argues, Lincoln “broke” the old constitution defined by compromise and helped instantiate a new understanding of the constitution based on moral authority.
The primary flaw in this book, to my mind, is that for all its talk of compromise and how Lincoln rejected it, Feldman devotes precious little time to engaging with the people Lincoln had to compromise with, namely Southern pro-slavery ideologues. This book is mostly an indictment of Lincoln and therefore is primarily focused on what he did and did not do, but reading Chapter Three “The Choice for War,” I found myself wondering exactly what Feldman would have had Lincoln do instead. Feldman argues on pages 165-166 that “The realities of the compromise Constitution had rested on a basic truth that Lincoln now refused to accept: constitutional government depended on the willingness of the majority to make concessions to the minority sufficient to keep them participating in the government. That is necessarily true of every constitutional government that has ever existed.” Reading this book, you would be forgiven for forgetting that Lincoln won a constitutional election, that pro-slavery southerners ran a pro-slavery candidate against him and lost, and only once they had lost this election (but before Lincoln even formally assumed power) did pro-slavery southerners in seven states move forward with secession. All of Feldman’s blame is on Lincoln, the constitutionally elected president, for apparently violating constitutional norms of compromise, and not the folks who (unconstitutionally) took their ball and went home once they couldn’t have their way, and before he’d even had a chance to govern. This is one example, but this same flaw is evident throughout the book especially in Chapter Three. Feldman can only make his argument that Lincoln alone “broke” the “compromise constitution,” by leaving out the folks who made it abundantly clear that there was little short of Lincoln giving up the office he had just (I repeat) won fair and square in an election they participated in, that would bring them back to the bargaining table.
Feldman goes on to argue that over the course of the war Lincoln effectively transformed himself into a dictator, an argument that goes to far in a number of places. His case that Lincoln oversaw a severe crackdown on freedom of the press and freedom of speech is probably the most egregious examples of this. Feldman’s argument relies on describing many of the very real and very worrisome infringements on freedom of the press during the war and asserting that because Lincoln was in charge of the federal government he must have directed or at the very least approved of all of it. Feldman has very little evidence that Lincoln actually had anything to do with almost any incident of malfeasance he describes. While he begins this section of the book by declaring that Lincoln “condoned and even embraced” the tactic of suppressing opposition newspapers (page 217), within two pages he is forced to backtrack to “it is a fair inference that [Lincoln] approved,” of such actions (page 219). This strikes me as an artful way of covering up a lack of evidence. Perhaps more to the point, is that at least twice he mentions overzealous suppression of newspapers by a U.S. general as part of an overall indictment of the behavior of Lincoln’s administration but fails to mention that Lincoln rebuked that commander for those actions. On page 218 he disapprovingly accounts General John Fremont’s declaration of martial law in Missouri, without noting that his extreme measures there led Lincoln to rapidly re-assign him elsewhere. A few pages later (page 224) he recounts the suppressive behavior of General Milo Hascall who made himself a terror of newspapers in Indiana, so much so that “Lincoln himself questioned whether Hascall had gone too far.” In fact (although Feldman doesn’t mention this) Lincoln had Hascall moved out of Indiana after only a month because of all the trouble he was causing. Feldman's determination to ignore anything that pro-slavery southerners were up to is again evident in this section when he declares that "Lincoln suppressed free speech and free expression to the greatest degree that they have ever been suppressed in U.S. history." (page 223) This is a fantastic claim and you might expect someone making it to engage with how for the previous thirty years almost every slave state had made it illegal to speak or publish in favor of the abolition of slavery, sometimes under penalty of death (see for example chapter six of Michael Kent Curtis' Free Speech the People's Darling Privilege). In another example of this same sort of highly selective argumentation, this time concerning the announcement of the emancipation proclamation in September 1862, Feldman argues that “except for voting Lincoln out of office in elections that were still two years away, there was no apparent constitutional mechanism for “the people” to stand up in favor of the Constitution and against [Lincoln],” noting that “Congress…lacked the will or the capacity to block Lincoln.” What Feldman does not acknowledge is that congressional elections took place six weeks after the announcement of the emancipation proclamation. If Lincoln had truly been the tyrant Feldman would have us believe, why give voters a chance to rebuke his party for the proclamation and harm his ability to govern? I don’t know if Feldman only considers presidential elections “Constitutional,” or perhaps thinks the elections could not possibly change the character of Congress, or if he was just deliberately misleading his readers but this sort of oversight is common.
Finally, Feldman’s endnotes are frustratingly sparse and where they do exist are often betray a lack of engagement with the immense scholarship on Lincoln, the Civil War, and the legal and constitutional issues it provoked. He frequently makes assertions about what beliefs Lincoln held at a certain time that are not supported with an accompanying note to establish this. At times it's unclear what books he's relying on for his general knowledge of the period because he'll go a page and a half without a note and then when there is one it is only for a speech that he just quoted. This isn't going to matter to most readers I am sure (and I'm sure his publisher wanted to keep the notes to a minimum), but it makes it difficult to engage with the book because when Feldman makes an assertion and then doesn't back it up, the reader doesn't know where he got his information or what sources he's using to come to his conclusions. Even if you don't care about the notes or the engagement with historical scholarship or whatever, the fact is Feldman is arguing for a dramatic re-appraisal of the legacy of a major historical figure and he just doesn't have the receipts (or doesn't show them to us which, in terms of critical engagement, amounts to the same thing).
Obviously, there’s plenty more in the book than this, but I hope these examples make it clear why I find Feldman’s approach to this topic unsatisfactory. I do not mean to imply that Abraham Lincoln is above reproach, or that every criticism that Feldman puts forward in this book is invalid. Feldman just doesn’t offer the reader all the evidence, and sometimes frames the evidence he does provide in misleading ways (intentionally or not). If you want to read an indictment of Lincoln than knock yourself out, I guess, just take his evidence with a grain of salt. If you want an account of the legal and constitutional issues of the Civil War Era that weighs the available evidence and tries to come to reasoned conclusions I would suggest John Witt’s Lincoln’s Code: The Laws of War in American History or Laura Edwards’ A Legal History of the Civil War and Reconstruction.
To briefly sum up Feldman’s argument, Abraham Lincoln was for much of his life devoted to the “compromise constitution,” an understanding of the constitution shared by many Americans in the nineteenth century that took the document to be a sort of work in progress that required the continual negotiation and compromise of all parties to keep its representative government functional. Beginning when Lincoln joined the Republican party and accelerating after his election and the outbreak of war, Feldman argues that Lincoln abandoned this view of the constitution, in favor of one in which he as the chief executive had nearly unlimited authority to ignore statutes, constitutional provisions, and the supreme court if he deemed it necessary to win the war. In doing so, Feldman argues, Lincoln “broke” the old constitution defined by compromise and helped instantiate a new understanding of the constitution based on moral authority.
The primary flaw in this book, to my mind, is that for all its talk of compromise and how Lincoln rejected it, Feldman devotes precious little time to engaging with the people Lincoln had to compromise with, namely Southern pro-slavery ideologues. This book is mostly an indictment of Lincoln and therefore is primarily focused on what he did and did not do, but reading Chapter Three “The Choice for War,” I found myself wondering exactly what Feldman would have had Lincoln do instead. Feldman argues on pages 165-166 that “The realities of the compromise Constitution had rested on a basic truth that Lincoln now refused to accept: constitutional government depended on the willingness of the majority to make concessions to the minority sufficient to keep them participating in the government. That is necessarily true of every constitutional government that has ever existed.” Reading this book, you would be forgiven for forgetting that Lincoln won a constitutional election, that pro-slavery southerners ran a pro-slavery candidate against him and lost, and only once they had lost this election (but before Lincoln even formally assumed power) did pro-slavery southerners in seven states move forward with secession. All of Feldman’s blame is on Lincoln, the constitutionally elected president, for apparently violating constitutional norms of compromise, and not the folks who (unconstitutionally) took their ball and went home once they couldn’t have their way, and before he’d even had a chance to govern. This is one example, but this same flaw is evident throughout the book especially in Chapter Three. Feldman can only make his argument that Lincoln alone “broke” the “compromise constitution,” by leaving out the folks who made it abundantly clear that there was little short of Lincoln giving up the office he had just (I repeat) won fair and square in an election they participated in, that would bring them back to the bargaining table.
Feldman goes on to argue that over the course of the war Lincoln effectively transformed himself into a dictator, an argument that goes to far in a number of places. His case that Lincoln oversaw a severe crackdown on freedom of the press and freedom of speech is probably the most egregious examples of this. Feldman’s argument relies on describing many of the very real and very worrisome infringements on freedom of the press during the war and asserting that because Lincoln was in charge of the federal government he must have directed or at the very least approved of all of it. Feldman has very little evidence that Lincoln actually had anything to do with almost any incident of malfeasance he describes. While he begins this section of the book by declaring that Lincoln “condoned and even embraced” the tactic of suppressing opposition newspapers (page 217), within two pages he is forced to backtrack to “it is a fair inference that [Lincoln] approved,” of such actions (page 219). This strikes me as an artful way of covering up a lack of evidence. Perhaps more to the point, is that at least twice he mentions overzealous suppression of newspapers by a U.S. general as part of an overall indictment of the behavior of Lincoln’s administration but fails to mention that Lincoln rebuked that commander for those actions. On page 218 he disapprovingly accounts General John Fremont’s declaration of martial law in Missouri, without noting that his extreme measures there led Lincoln to rapidly re-assign him elsewhere. A few pages later (page 224) he recounts the suppressive behavior of General Milo Hascall who made himself a terror of newspapers in Indiana, so much so that “Lincoln himself questioned whether Hascall had gone too far.” In fact (although Feldman doesn’t mention this) Lincoln had Hascall moved out of Indiana after only a month because of all the trouble he was causing. Feldman's determination to ignore anything that pro-slavery southerners were up to is again evident in this section when he declares that "Lincoln suppressed free speech and free expression to the greatest degree that they have ever been suppressed in U.S. history." (page 223) This is a fantastic claim and you might expect someone making it to engage with how for the previous thirty years almost every slave state had made it illegal to speak or publish in favor of the abolition of slavery, sometimes under penalty of death (see for example chapter six of Michael Kent Curtis' Free Speech the People's Darling Privilege). In another example of this same sort of highly selective argumentation, this time concerning the announcement of the emancipation proclamation in September 1862, Feldman argues that “except for voting Lincoln out of office in elections that were still two years away, there was no apparent constitutional mechanism for “the people” to stand up in favor of the Constitution and against [Lincoln],” noting that “Congress…lacked the will or the capacity to block Lincoln.” What Feldman does not acknowledge is that congressional elections took place six weeks after the announcement of the emancipation proclamation. If Lincoln had truly been the tyrant Feldman would have us believe, why give voters a chance to rebuke his party for the proclamation and harm his ability to govern? I don’t know if Feldman only considers presidential elections “Constitutional,” or perhaps thinks the elections could not possibly change the character of Congress, or if he was just deliberately misleading his readers but this sort of oversight is common.
Finally, Feldman’s endnotes are frustratingly sparse and where they do exist are often betray a lack of engagement with the immense scholarship on Lincoln, the Civil War, and the legal and constitutional issues it provoked. He frequently makes assertions about what beliefs Lincoln held at a certain time that are not supported with an accompanying note to establish this. At times it's unclear what books he's relying on for his general knowledge of the period because he'll go a page and a half without a note and then when there is one it is only for a speech that he just quoted. This isn't going to matter to most readers I am sure (and I'm sure his publisher wanted to keep the notes to a minimum), but it makes it difficult to engage with the book because when Feldman makes an assertion and then doesn't back it up, the reader doesn't know where he got his information or what sources he's using to come to his conclusions. Even if you don't care about the notes or the engagement with historical scholarship or whatever, the fact is Feldman is arguing for a dramatic re-appraisal of the legacy of a major historical figure and he just doesn't have the receipts (or doesn't show them to us which, in terms of critical engagement, amounts to the same thing).
Obviously, there’s plenty more in the book than this, but I hope these examples make it clear why I find Feldman’s approach to this topic unsatisfactory. I do not mean to imply that Abraham Lincoln is above reproach, or that every criticism that Feldman puts forward in this book is invalid. Feldman just doesn’t offer the reader all the evidence, and sometimes frames the evidence he does provide in misleading ways (intentionally or not). If you want to read an indictment of Lincoln than knock yourself out, I guess, just take his evidence with a grain of salt. If you want an account of the legal and constitutional issues of the Civil War Era that weighs the available evidence and tries to come to reasoned conclusions I would suggest John Witt’s Lincoln’s Code: The Laws of War in American History or Laura Edwards’ A Legal History of the Civil War and Reconstruction.
May 20, 2022
Lincoln the Dictator
Feldman’s premise is that the Constitution ratified in 1787 was broken, and only came into existence due to a compromise over slavery. Lincoln’s legacy is setting aside the broken Constitution and establishing the hope for a redeemed Constitution, which still requires diligent effort. All readers acknowledge this. Feldman ignores many of the political and military realities that Lincoln was forced to confront, and alleges Lincoln exercised dictatorial powers throughout his presidency. Some of his assertions are absurd: “Abraham Lincoln came into office promising to protect slavery.” (p. 264) Apparently South Carolina thought differently. “Lincoln had proposed emancipation but was holding off because of opposition within the cabinet.” (p. 285). The cabinet questioned the timing of the proclamation, but didn’t oppose its effects. Alternatively, read James Oakes’ “Freedom National.”
Feldman’s premise is that the Constitution ratified in 1787 was broken, and only came into existence due to a compromise over slavery. Lincoln’s legacy is setting aside the broken Constitution and establishing the hope for a redeemed Constitution, which still requires diligent effort. All readers acknowledge this. Feldman ignores many of the political and military realities that Lincoln was forced to confront, and alleges Lincoln exercised dictatorial powers throughout his presidency. Some of his assertions are absurd: “Abraham Lincoln came into office promising to protect slavery.” (p. 264) Apparently South Carolina thought differently. “Lincoln had proposed emancipation but was holding off because of opposition within the cabinet.” (p. 285). The cabinet questioned the timing of the proclamation, but didn’t oppose its effects. Alternatively, read James Oakes’ “Freedom National.”
January 12, 2023
Well thought out, comprehensive insights into Lincoln’s years during the civil war and the events that lead to emancipation. Feldman’s understanding of constitutional law is the perfect lens through which Lincoln should be scrutinized at this historic juncture in our nation’s history. It is fascinating to learn more about the evolution of Lincoln’s political ideology that started with repeated attempts at preserving the “compromise constitution”, but that eventually led to the emancipation and moral constitution that we strive to uphold today. These thoughts and practices did not happen over night for Lincoln, and Feldman does a great job at laying out the president’s dilemmas during these delicate years.
January 24, 2024
Most of the book concentrates on the fact that the constitution is a political document, forged through compromise to create a flawed nation. The premise is the constitution became a moral instrument when Lincoln was forced to break the compromise and reach beyond it.
Too much time is spent in showing the constitution is a product of compromise, too many subsections feel plugged in for convention's sake and when the narrator starts using his "speechifying" voice for quotes it is really annoying.
Too much time is spent in showing the constitution is a product of compromise, too many subsections feel plugged in for convention's sake and when the narrator starts using his "speechifying" voice for quotes it is really annoying.
Read
June 8, 2022If you're as old as I am, you remember the saying "We had to destroy the village in order to save it." Having read this book, I wish I could remind the author that it was an irrational lie then, and it still is an irrational lie today.
Feldman makes a couple of irrational contentions in this volume. First, Abraham Lincoln - whom he regards as the most brilliant constitutional thinkiner in American history - had to violate the Constitution in order to restore it after the southern states "broke" the Constitution by their secession. And second, that by himself "breaking" the "compromise Constitution" that had existed since its original ratification, Lincoln "remade" the Constitution into a new "moral Constitution" that has prevailed ever since. Frankly, I can only ascribe these prima facie illogical and just plain wrong assertions to the combination of two things - the plain historical fact that Lincoln violated the Constitution right and left, and the hagiography that has made of Lincoln a secular martyr, beyond all reproach.
It can be hard to recognize the actual Abraham Lincoln in this book. The man was a scheming politician, a man who could cunningly maneuver in order to get what he wanted. He was, perhaps, the first professional politician to ever hold the presidency; others before him had indeed been capable in politics, but Lincoln's whole life was politics, and he was willing to do whatever was necessary to achieve his political goals. He would fit in perfectly among the Republicans and Democrats of 2022, who may have an agenda which they won't abandon, but who are willing to make any promise, tell any lie, betray any compatriot, and conclude any deal in their quest for power and its indefinite continuation.
But we don't see any of that here. Instead Feldman writes as though Lincoln could do no wrong, and was the clearest and brightest and most sincere thinker who ever trod the earth. Feldman does for Lincoln what Parson Weems did for George Washington. This is hagiography at its most shining - and as always, the real Lincoln vanishes in the haze of assumptions and whitewash.
Finally Feldman comes to the point where he can't hold back the truth any longer, and he admits openly that Lincoln violated the Constitution. He admits that Lincoln scrambled desperately to justify some of his acts and decisions, and fastedn upon "military necessity" as the best option. Of course military necessity never justifies the president in breaking the supreme law of the land, which it is his one supreme purpose to uphold, but Feldom just ignores that.
And then, having made the admissions he can't avoid, he goes right back to gilding dung. He continues to paint Lincoln as a great constitutional thinker, who only violated the Constitution because it was the only way to save the Constitution. And he winds up by repeating his insistence that Lincoln created an entirely new Constitution, one which rejected the compromises around slavery and therefore was moral.
And that claim is, perhaps, the most arrant nonsense of all. It is true that for one man to own another man as he might own a cow or a house or a rifle is a vast immorality. But to say that because, after the War of Northern Aggression, the "Reconstruction amendments" outlawed slavery we have a new Constitution is the most patent absurdity. Anyone with a brain knows better. How a professor at Podunk Junior College, never mind at Harvard, could seriously propound such notion, and expect others to swallow it, is utterly beyond me. It is painfully obvious to anyone who knows the Constitution, and the history thereof, that the Constitution that exists today is the same Constitution that existed the day the Constitutional Convention presented it to the states. Certainly there were amendments which codified Lincoln's "war measures," but if amending the Constitution makes it a new Constitution, then we had a new Constitution in 1791, when the states ratified the Bill of Rights. If Feldman's bizarre notion - it certainly isn't sound enough to be a theory - is correct, then every amendment to the Constitution actually abolishes the Constitution, and creates a brand new one. Of course that's like saying that every time you get new tires for your car you actually get a new car...even though the only thing that's changed is the tires.
I suppose this book is what you get when you mix blind Lincoln worship with the most finely refined ivory tower scholarship. Instead of drawing the obvious and necessary conclusion from Lincoln's egregious violations of the Constitution - that is, that Lincoln was a dictator who did vast harm to the federal republic - he draws a conclusion which no one would ever think came naturally from the facts. Lincoln is god, and can do no wrong, and therefore when he very obviously did do wrong, it must have been for a higher moral purpose, and the end result must have been a moral good.
Of course, the plain fact is that any "good" which requires the president to flout the very Constitution he has sworn to uphold cannot possibly be good, any more than any "law enforcement" which requires a police officer to blow holes in the criminal code can't possibly be the actual enforcement of the law. "We had to destroy the village in order to save it" was utter nonsense in Vietnam, and it isn't can't be a valid justification for King Abraham acting more dictatorially than George III ever conceived of.
Feldman makes a couple of irrational contentions in this volume. First, Abraham Lincoln - whom he regards as the most brilliant constitutional thinkiner in American history - had to violate the Constitution in order to restore it after the southern states "broke" the Constitution by their secession. And second, that by himself "breaking" the "compromise Constitution" that had existed since its original ratification, Lincoln "remade" the Constitution into a new "moral Constitution" that has prevailed ever since. Frankly, I can only ascribe these prima facie illogical and just plain wrong assertions to the combination of two things - the plain historical fact that Lincoln violated the Constitution right and left, and the hagiography that has made of Lincoln a secular martyr, beyond all reproach.
It can be hard to recognize the actual Abraham Lincoln in this book. The man was a scheming politician, a man who could cunningly maneuver in order to get what he wanted. He was, perhaps, the first professional politician to ever hold the presidency; others before him had indeed been capable in politics, but Lincoln's whole life was politics, and he was willing to do whatever was necessary to achieve his political goals. He would fit in perfectly among the Republicans and Democrats of 2022, who may have an agenda which they won't abandon, but who are willing to make any promise, tell any lie, betray any compatriot, and conclude any deal in their quest for power and its indefinite continuation.
But we don't see any of that here. Instead Feldman writes as though Lincoln could do no wrong, and was the clearest and brightest and most sincere thinker who ever trod the earth. Feldman does for Lincoln what Parson Weems did for George Washington. This is hagiography at its most shining - and as always, the real Lincoln vanishes in the haze of assumptions and whitewash.
Finally Feldman comes to the point where he can't hold back the truth any longer, and he admits openly that Lincoln violated the Constitution. He admits that Lincoln scrambled desperately to justify some of his acts and decisions, and fastedn upon "military necessity" as the best option. Of course military necessity never justifies the president in breaking the supreme law of the land, which it is his one supreme purpose to uphold, but Feldom just ignores that.
And then, having made the admissions he can't avoid, he goes right back to gilding dung. He continues to paint Lincoln as a great constitutional thinker, who only violated the Constitution because it was the only way to save the Constitution. And he winds up by repeating his insistence that Lincoln created an entirely new Constitution, one which rejected the compromises around slavery and therefore was moral.
And that claim is, perhaps, the most arrant nonsense of all. It is true that for one man to own another man as he might own a cow or a house or a rifle is a vast immorality. But to say that because, after the War of Northern Aggression, the "Reconstruction amendments" outlawed slavery we have a new Constitution is the most patent absurdity. Anyone with a brain knows better. How a professor at Podunk Junior College, never mind at Harvard, could seriously propound such notion, and expect others to swallow it, is utterly beyond me. It is painfully obvious to anyone who knows the Constitution, and the history thereof, that the Constitution that exists today is the same Constitution that existed the day the Constitutional Convention presented it to the states. Certainly there were amendments which codified Lincoln's "war measures," but if amending the Constitution makes it a new Constitution, then we had a new Constitution in 1791, when the states ratified the Bill of Rights. If Feldman's bizarre notion - it certainly isn't sound enough to be a theory - is correct, then every amendment to the Constitution actually abolishes the Constitution, and creates a brand new one. Of course that's like saying that every time you get new tires for your car you actually get a new car...even though the only thing that's changed is the tires.
I suppose this book is what you get when you mix blind Lincoln worship with the most finely refined ivory tower scholarship. Instead of drawing the obvious and necessary conclusion from Lincoln's egregious violations of the Constitution - that is, that Lincoln was a dictator who did vast harm to the federal republic - he draws a conclusion which no one would ever think came naturally from the facts. Lincoln is god, and can do no wrong, and therefore when he very obviously did do wrong, it must have been for a higher moral purpose, and the end result must have been a moral good.
Of course, the plain fact is that any "good" which requires the president to flout the very Constitution he has sworn to uphold cannot possibly be good, any more than any "law enforcement" which requires a police officer to blow holes in the criminal code can't possibly be the actual enforcement of the law. "We had to destroy the village in order to save it" was utter nonsense in Vietnam, and it isn't can't be a valid justification for King Abraham acting more dictatorially than George III ever conceived of.
December 2, 2021
Challenged every perception I had of Abraham Lincoln! Overall, Feldman gave me a more expansive and nuanced view of Lincoln, the Civil War, and the US constitution. I was especially impressed by his ability to go into great detail yet remain compelling and engaging. Highly recommend.
January 1, 2023
Feldman writes this book to remind us of how different our current concept of the US Constitution - as a moral document – is from the concept of the Constitution as a compromise. Well-written and lucid, the focus is on Lincoln’s thinking, especially as he encountered the secession crisis, and later as the subsequent war progressed. In particular, the focus is on Lincoln’s legal reasoning.
We forget how it was not legally obvious that he even had the authority to raise an army to attack the South. Southerners thought they were acting constitutionally when they seceded. While implicitly acknowledging that Revolution was possible under international law, Lincoln viewed his duty as being one of preserving the Union, “so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or in some authoritative manner, direct the contrary.” Counterintuitively, by claiming he did not have the power to decide whether the South had engaged in legitimate Revolution, Lincoln arrogated to himself the right to act immediately against the South, with force of arms.
Lincoln also deemed as constitutional some highly questionable measures, most notably his broad suspension of habeus corpus. His legal reasoning stemmed from Constitutional necessity: it being necessary to prevent disloyal actions in order to allow him to faithfully execute the rest of the laws.
Much later, Lincoln finally arrived at the bold statements of the Emancipation proclamation. But from the legalistic understanding of the Constitution that had prevailed since the founding, it is highly questionable whether the Proclamation was technically constitutional, since it obviated the “property rights” of Southern slaveholders. Lincoln changed the phrasing of the proclamation from “forever free” to “henceforward free”, likely to avoid having the document seem like a forbidden bill of attainder.
There is a lot to think about here. It is by no means an attack on Lincoln, still less a claim that the Civil War was unjust. Rather, it is an argument that the Civil War was just, and that it was the Constitution itself which was unjust, and that it was Lincoln’s leadership that blazed a path to transform it into the moral document as we understand it today.
We forget how it was not legally obvious that he even had the authority to raise an army to attack the South. Southerners thought they were acting constitutionally when they seceded. While implicitly acknowledging that Revolution was possible under international law, Lincoln viewed his duty as being one of preserving the Union, “so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or in some authoritative manner, direct the contrary.” Counterintuitively, by claiming he did not have the power to decide whether the South had engaged in legitimate Revolution, Lincoln arrogated to himself the right to act immediately against the South, with force of arms.
Lincoln also deemed as constitutional some highly questionable measures, most notably his broad suspension of habeus corpus. His legal reasoning stemmed from Constitutional necessity: it being necessary to prevent disloyal actions in order to allow him to faithfully execute the rest of the laws.
Much later, Lincoln finally arrived at the bold statements of the Emancipation proclamation. But from the legalistic understanding of the Constitution that had prevailed since the founding, it is highly questionable whether the Proclamation was technically constitutional, since it obviated the “property rights” of Southern slaveholders. Lincoln changed the phrasing of the proclamation from “forever free” to “henceforward free”, likely to avoid having the document seem like a forbidden bill of attainder.
There is a lot to think about here. It is by no means an attack on Lincoln, still less a claim that the Civil War was unjust. Rather, it is an argument that the Civil War was just, and that it was the Constitution itself which was unjust, and that it was Lincoln’s leadership that blazed a path to transform it into the moral document as we understand it today.
January 18, 2022
Noah Feldman, in The Broken Constitution, lays out a purely academic argument, which could be construed as a political one. Instead, Feldman identifies a somewhat fringe but mostly rhetorical stance that is far and away from an ethical, revisionist, or hypothetical historical judgment.
This is not a biography, nor is it a political book; The Broken Constitution asserts that before Lincoln’s presidency and the constitutional crises he faces, the Constitution is a compromise document. Feldman argues with evidence that in order for the United States to come into being in the 18th century, individual states conceded to a set of less than moral or ideal rules surrounding slavery, only to have a forced revisitation of those agreements in the 19th century. Lincoln, then, transforms the constitution, through means more of inevitability than personal choice, into a moral document that more aligns with the freedom clauses of the Declaration of Independence.
In this exhaustively scholarly tome, Feldman presents seemingly controversial opinions of Lincoln, but when looked at through an academic lens, these sources and arguments are used as further evidence for a critical submission. When read as such, the book gains value and loses any partisan undertones.
I appreciated this rhetorical argument by Feldman. It must be said, though, that this book is for the Lincoln reader; that is, The Broken Constitution should be read as supplemental material to the many biographies and historical studies in print on one of our most complex, intelligent, and important presidents in history. By no means should this book be one’s only source on such an expansive and interpretive subject.
This is not a biography, nor is it a political book; The Broken Constitution asserts that before Lincoln’s presidency and the constitutional crises he faces, the Constitution is a compromise document. Feldman argues with evidence that in order for the United States to come into being in the 18th century, individual states conceded to a set of less than moral or ideal rules surrounding slavery, only to have a forced revisitation of those agreements in the 19th century. Lincoln, then, transforms the constitution, through means more of inevitability than personal choice, into a moral document that more aligns with the freedom clauses of the Declaration of Independence.
In this exhaustively scholarly tome, Feldman presents seemingly controversial opinions of Lincoln, but when looked at through an academic lens, these sources and arguments are used as further evidence for a critical submission. When read as such, the book gains value and loses any partisan undertones.
I appreciated this rhetorical argument by Feldman. It must be said, though, that this book is for the Lincoln reader; that is, The Broken Constitution should be read as supplemental material to the many biographies and historical studies in print on one of our most complex, intelligent, and important presidents in history. By no means should this book be one’s only source on such an expansive and interpretive subject.
July 12, 2023
Feldman does a masterful job of describing Lincoln’s struggle to manage turmoil caused by states seceding from the Union without violating the Constitution. The task is monumental and in the end futile. The Constitution was based on a moral wrong which the southern states would not acknowledge, let alone accept. Lincoln tried his best to restore the Union without freeing the slaves in the south but failed. He eventually realized that to win the war, slavery must be eradicated.
The most interesting portions of the text to me described how Lincoln suspended Habeas Corpus and suppressed public dissent by shutting down many newspapers and arresting editors. Throughout the war, Lincoln struggled to legally justify many actions that were clearly unconstitutional. Feldman leads the reader through Lincoln’s convoluted thought processes via careful reading of speeches, proclamations, orders, letters and contemporaneous accounts.
At the end of the war, Lincoln switched from legal reasoning to moral justification. The human cost of the war was so huge that only a spiritual goal and accomplishment could possibly satisfy a nation which had so suffered. The aim of simply preserving the Union seems paltry compared to the carnage.
A careful reading of Feldman is well worth the effort.
The most interesting portions of the text to me described how Lincoln suspended Habeas Corpus and suppressed public dissent by shutting down many newspapers and arresting editors. Throughout the war, Lincoln struggled to legally justify many actions that were clearly unconstitutional. Feldman leads the reader through Lincoln’s convoluted thought processes via careful reading of speeches, proclamations, orders, letters and contemporaneous accounts.
At the end of the war, Lincoln switched from legal reasoning to moral justification. The human cost of the war was so huge that only a spiritual goal and accomplishment could possibly satisfy a nation which had so suffered. The aim of simply preserving the Union seems paltry compared to the carnage.
A careful reading of Feldman is well worth the effort.
December 5, 2021
Fantastic angle, fantastic research, fantastic history. Feldman brings his legal and constitutional brilliance to this project in a way that will have you rethinking the constitution, the civil war, and American history. Not to mention Lincoln. Nothing I’ve read on Lincoln has ever painted quite so stark a picture of (a) his own controversial, anti-constitutional, anti-liberal democracy, downright dictatorial actions, (b) the incredible contrast of those actions against his deeply, devoutly moderate political life, and (c) the utter lack of any viable options for ending slavery OR preserving the union within the realm of legal, and even moral, righteousness. Lincoln remains the most profound figure in American history. This book expertly portrays the multitudes he contained as a leader, a legal thinker, a devoted unionist, a quasi racist and quasi anti-racist, and more. A must read for any student of the US Constitution, Abraham Lincoln, or slavery.
December 21, 2021
There’s a term, “the halo effect” where you give certain people a pass and don’t judge them critically. That is certainly my way of viewing Lincoln. This book challenges that attitude. I had read several books on Lincoln. No author presents this Civil War, authoritarian side of him as this book does.in the end it all makes a certain amount of sense.
Damn good book to read.
Damn good book to read.
May 4, 2022
This extremely detailed and at times convoluted book makes the provocative claim that Lincoln tore up the constitution (and the sanctity of its inviolability/immutability) in order to… paradoxically, save it.
The book takes us through the evolution of Lincoln’s thought process through his early years up to his presidency, and how his views became more flexible, and malleable to fit the political needs of the changing circumstances. For much of his political career (until the last few years of it, really), despite recognizing the immorality of slavery ingrained in the constitution, Lincoln has striven to withholding the constitution at all costs through various compromises to keep a fragile balance between the free and slave states, thereby keeping the union intact. As the civil war has dragged on, however, Lincoln adopted a more pragmatic (and less reconciliatory) approach towards the secessionist states, using the proclamation of emancipation as the springboard to reshape a future constitution that would outlaw the slavery. Expounding on this evolution of Lincoln’s thought, it is interesting to note that Feldman debunks the popularly accepted image of Lincoln as the moral and selfless emancipator and focuses on how morality always took a backseat in achieving his goals. The author displays that most glaringly in Lincoln’s discussions with Frederick Douglass and other prominent free blacks in various instances in early 1860s, revealing how far his thinking was from racial equality. Indeed, the moral foundation that the new constitution would have and the analogy of the old and new testament that Lincoln used, with the latter displacing the ritual law and replacing it with the moral law came much later, in late 1863 or even in early 1864.
That said, I found Feldman’s harsh indictment on Lincoln sometimes less than impartial, most notably when the author goes as far as claiming that he became a quasi-dictator when he violated the habeas corpus and annulled the freedom of press in the wake of the civil war. True, these may not be within his executive constitutional rights, but analyzing them from a purely constitutional rights perspective in a vacuum, decoupled from the realities of the impending war seems to me to be too academic to add any value to the overall discussion.
The book takes us through the evolution of Lincoln’s thought process through his early years up to his presidency, and how his views became more flexible, and malleable to fit the political needs of the changing circumstances. For much of his political career (until the last few years of it, really), despite recognizing the immorality of slavery ingrained in the constitution, Lincoln has striven to withholding the constitution at all costs through various compromises to keep a fragile balance between the free and slave states, thereby keeping the union intact. As the civil war has dragged on, however, Lincoln adopted a more pragmatic (and less reconciliatory) approach towards the secessionist states, using the proclamation of emancipation as the springboard to reshape a future constitution that would outlaw the slavery. Expounding on this evolution of Lincoln’s thought, it is interesting to note that Feldman debunks the popularly accepted image of Lincoln as the moral and selfless emancipator and focuses on how morality always took a backseat in achieving his goals. The author displays that most glaringly in Lincoln’s discussions with Frederick Douglass and other prominent free blacks in various instances in early 1860s, revealing how far his thinking was from racial equality. Indeed, the moral foundation that the new constitution would have and the analogy of the old and new testament that Lincoln used, with the latter displacing the ritual law and replacing it with the moral law came much later, in late 1863 or even in early 1864.
That said, I found Feldman’s harsh indictment on Lincoln sometimes less than impartial, most notably when the author goes as far as claiming that he became a quasi-dictator when he violated the habeas corpus and annulled the freedom of press in the wake of the civil war. True, these may not be within his executive constitutional rights, but analyzing them from a purely constitutional rights perspective in a vacuum, decoupled from the realities of the impending war seems to me to be too academic to add any value to the overall discussion.
March 21, 2022
A Review of the Audiobook
Published in 2021 by Macmillan Audio.
Read by the author, Noah Feldman.
Duration: 11 hours, 14 minutes.
Unabridged.
Feldman argues that the Constitution as it was known to Congressman Abraham Lincoln (he served in the Congress from 1847-1849) was already a broken Constitution and maybe had been broken since it had been ratified in 1788. What caused this break? No real surprise - slavery.
Feldman details the compromises that had been in place to induce the Southern states to join a stronger Federal union and how those compromises were re-hashed in the decades that followed in acts like the Missouri Compromise (1820), the Nullification Crisis (1832-33) and the Compromise of 1850. The Dred Scott decision by the Supreme Court in 1857 only heightened tensions between the slave states and the rest of the union. Feldman's point is that if the Constitution were not already broken, these crises wouldn't have been so dramatic and wouldn't have actually have been crises.
When the Confederate states start seceding after Lincoln's 1860 Presidential election, it was really a continuation of the ongoing series of crises. Feldman details all of those crises and also tells how Lincoln's rising political career was affected by them.
Feldman then details how Lincoln often broke the rules of the Constitution in the name of...
Read more at:
https://dwdsreviews.blogspot.com/2022...
Published in 2021 by Macmillan Audio.
Read by the author, Noah Feldman.
Duration: 11 hours, 14 minutes.
Unabridged.
Feldman argues that the Constitution as it was known to Congressman Abraham Lincoln (he served in the Congress from 1847-1849) was already a broken Constitution and maybe had been broken since it had been ratified in 1788. What caused this break? No real surprise - slavery.
Feldman details the compromises that had been in place to induce the Southern states to join a stronger Federal union and how those compromises were re-hashed in the decades that followed in acts like the Missouri Compromise (1820), the Nullification Crisis (1832-33) and the Compromise of 1850. The Dred Scott decision by the Supreme Court in 1857 only heightened tensions between the slave states and the rest of the union. Feldman's point is that if the Constitution were not already broken, these crises wouldn't have been so dramatic and wouldn't have actually have been crises.
When the Confederate states start seceding after Lincoln's 1860 Presidential election, it was really a continuation of the ongoing series of crises. Feldman details all of those crises and also tells how Lincoln's rising political career was affected by them.
Feldman then details how Lincoln often broke the rules of the Constitution in the name of...
Read more at:
https://dwdsreviews.blogspot.com/2022...
January 22, 2024
There's a lot of interesting information here, and Feldman's analysis of Lincoln's moves and methods, as well as the reason behind them, are insightful. I think for me what holds this book back is 1) the sheer volume of historical exposition on topics that are more common knowledge and 2) the amount of assumed knowledge of some more obscure facts. Feldman really is a Constitutional scholar, and that sometimes makes it harder for a layman like me to understand some of what he is driving at. Now, I know you may be thinking, but why is that his or the book's fault? In part, it's not. On the other hand, I think the best writers are those who can concisely convey their points in common, layman's terms. This is not all to say I think Feldman is a bad author; I don't think that at all, and I will most certainly read more of his work. What this is all to say is I think in order to really enjoy this book to the fullest, there's a lot of pre-requisite reading and additional studying to be done. Maybe I'll come back to this book after some further exploration.
October 20, 2023
An interesting account of the development of Lincoln's constitutional thought based on a close reading of his public explanations of his ideals and policies. Explaining Lincoln's evolving thought from defending a compromise Constitution (maintaining the Union through compromise on slavery) to a broken Constitution (as he saw it, violating the Constitution in order to save it and the Union from the Constitution-breaking secession) to a moral Constitution (the "new birth of freedom" based on liberty and equality) may be too simplistic, and does seem to be related to Feldman's view of a living Constitution (as far as I can tell).
Feldman is quite frank in his evaluation of Lincoln, pointing out what he sees as flaws in Lincoln's logic and documenting the large-scale repression of war critics. It's a good book written at the popular level that reframes Lincoln in a thought-provoking way.
Feldman is quite frank in his evaluation of Lincoln, pointing out what he sees as flaws in Lincoln's logic and documenting the large-scale repression of war critics. It's a good book written at the popular level that reframes Lincoln in a thought-provoking way.
September 13, 2022
A fascinating and well-written account of Lincoln's constitutional theory and violations. Feldman puts together his narrative of the constitutional history with some key moments in Lincoln's life. An interesting story with an opinion, while this is not a book for too general audience, it is well accessible for non-lawyers. The overall argument is persuasive and realistic.
Its core argument is interesting and while Feldman does not waste words, he spends a lot of time on debates that are quite academical and not that fascinating. He also makes sure to abide by the rules of today's discourse, while at the same time he can be quite interetingly radical in his critique of Lincoln's actions, especially in the suspension of habeas corpus and violation of free speech principles.
Its core argument is interesting and while Feldman does not waste words, he spends a lot of time on debates that are quite academical and not that fascinating. He also makes sure to abide by the rules of today's discourse, while at the same time he can be quite interetingly radical in his critique of Lincoln's actions, especially in the suspension of habeas corpus and violation of free speech principles.
September 18, 2025
Noah Feldman does a great job explaining how Lincoln maneuvered throughout the Civil War. From the start of Lincoln’s legal career to his presidency, Feldman lays out the late president’s thoughts and feelings regarding the Constitution, slavery, and ultimately succession. I believe the book gives great insight into the most difficult time in U.S. history.
Although it focuses on such a nice topic, I do believe the author hit the nose on many topics i.e Lincoln suspending habeas corpus, his response to Chief Justice Taney, emancipation, and his suppression of dissenters in the North.
The Broken Constitution, although focused on a specific area of the Civil War, is a great way to get your foot in the door regarding this moment in U.S. history.
Although it focuses on such a nice topic, I do believe the author hit the nose on many topics i.e Lincoln suspending habeas corpus, his response to Chief Justice Taney, emancipation, and his suppression of dissenters in the North.
The Broken Constitution, although focused on a specific area of the Civil War, is a great way to get your foot in the door regarding this moment in U.S. history.
March 30, 2022
I found this heavily researched book a tough slog but, as an Abraham Lincoln fan, an addition to my personal exploration of the man. This book is not so much a biography as a legalistic treatise, exploring the labyrinth of Lincoln´s intellectual struggles which ended with a fundamental, and new interpretation of the US Constitution.
One glaring, albeit minor, err: Feldman states that Oregon was admitted into the Union as the Missouri Compromise free state to Texas´s slave state. Oregon was not admitted into the Union until 1859. Iowa, my home state, was the free state intended to balance the admission of the slaveocracy of Texas.
One glaring, albeit minor, err: Feldman states that Oregon was admitted into the Union as the Missouri Compromise free state to Texas´s slave state. Oregon was not admitted into the Union until 1859. Iowa, my home state, was the free state intended to balance the admission of the slaveocracy of Texas.
June 12, 2022
The Second Founding
Feldman contextualizes the suspension of habeas corpus and emancipation without compensation as necessary steps to move from the compromise Constitution to a new political era. He does not attempt to justify the careful calculations that Lincoln made with respect to slavery. He interprets the executive orders issued during the Civil War through the lens of the Second Inaugural Address. I applaud this effort even as I recognize the myth making necessary to summon into existence a more virtuous republic.
Feldman contextualizes the suspension of habeas corpus and emancipation without compensation as necessary steps to move from the compromise Constitution to a new political era. He does not attempt to justify the careful calculations that Lincoln made with respect to slavery. He interprets the executive orders issued during the Civil War through the lens of the Second Inaugural Address. I applaud this effort even as I recognize the myth making necessary to summon into existence a more virtuous republic.
December 11, 2022
A great overview of the constitutional and moral background of Lincolnshire approach tonthe constitution. More than that however the author cogently examines additional sources and detail. He manages to give provide thoughtful answers to the evolution of Lincoln as a president and explains his departure from the practical politician to the great emancipator. As a lover of history I recommend this book to anyone who wants to understand the reality of this complex president's relationship to the document which gave birth to the civil war.
September 4, 2023
An interesting analysis of Lincoln’s constitutional arguments surrounding the suspension of habeas corpus and emancipation. While the book correctly argues that Lincoln may have been the most “dictator-esque” President in US history, the author could have done a better job of explaining this without making Lincoln seem like a leader who changed his mind every other day. The author fails to discuss how Lincoln essentially didn’t have a choice but to “break” the Constitution as he knew it. Still, an in-depth, well thought out analysis of Lincoln as a constitutional expert.
March 29, 2024
I listened to the playaway version of the book. Well I listened to most of the book or at least I tried to.
But, I never got into the book. I don't know if its the book or me. I don't think I am very interested in that time period. I am a lot more interested in word war 2 than in the civil war that is for sure. Maybe someone who is more interested in the civil war would enjoy broken constitution. I don't know.
I don't remember anything about the book that I particularly liked or disliked.
But, I never got into the book. I don't know if its the book or me. I don't think I am very interested in that time period. I am a lot more interested in word war 2 than in the civil war that is for sure. Maybe someone who is more interested in the civil war would enjoy broken constitution. I don't know.
I don't remember anything about the book that I particularly liked or disliked.
February 17, 2022
A wonderful book, though I would recommend you read a really good biography of Lincoln before turning to this more narrowly focused work. Lincoln was a complex man (thank God), and trying to parse the 1787 US Constitution - which clearly enabled slavery - was a morally and intellectually difficult task.
Reading Noah Feldman takes some work, though he writes well on these issues. Highly recommended for Lincoln and Civil War students.
Reading Noah Feldman takes some work, though he writes well on these issues. Highly recommended for Lincoln and Civil War students.
July 6, 2022
Feldman is a great story teller, steeped in incredible historical knowledge of the US constitution and constitutional law. I was shocked by some of his revelations about what Lincoln restored to doing, in an "ends justifies the means" approach that would be appalling even by today's January 6th insurrection standards. As the age old story goes, those who do not learn from history are doomed to repeat it.
July 17, 2022
This book is for a very niche audience. I read it because I really enjoy Feldman’s “Deep Background” podcast. It’s filled with some interesting points and a different way to view Lincoln, who is primarily taught in school as a man who did no wrong. The whole book feels like a reason for a few historians and lawyers to argue about minutiae from the 1800s
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