Lincoln and "The Broken Constitution"

Did Lincoln break the Constitution (as Feldman argues) or vindicate it (as Oakes insists)? The debate will never end, because of course the answer is some of both. The answers historians and lawyers give to the question tell us as much about historians and lawyers as they do about the Civil War Constitution.

John Fabian Witt then calls out Oakes on limited grounds.  

I found Witt's Lincoln's Code very informative though his book American Contagions: Epidemics and the Law from Smallpox to COVID-19 more akin to an expanded lecture. That is, somewhat unsatisfying.  Anyway, I'll take Witt's criticism as basically fair though it doesn't really hurt Oakes' overall argument.  

And, reading both his original review (linked; you can read one article free there) and his reply, I think the argument is overall valid.  Ironically, even the exceptions cited are somewhat doubtful at least.  For instance, Oakes in his original review noted:

No chief executive had ever called up an army of 75,000 to suppress a rebellion without prior congressional authorization.

But, the Militia Act of 1792 specifically so authorizes.  President Washington used it to call up 15,000 to fight the Whiskey Rebellion.  Let me just quote, which is partially tiresome, since the guy should know it:

And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

This is what was involved -- Congress was not in session and normal procedures were not adequate to "by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals" to execute the law.  

Then, perhaps to throw the other side a bone, we have various civil liberty issues during the Civil War.  This includes applying old sentiments about seditious speech, which we no longer deem appropriate, but were acceptable to many Framers even in the "quasi-war" with France (Alien and Sedition Acts).  

And, there is the suspension of habeas corpus, which the Constitution specifically allows during rebellion.  The most "blatant" case some cite is the famous Merryman case, but again, Congress wasn't in session.  The specific provision might be in Art. I, but sec. 9 in some clauses says "Congress," some doesn't.  The Habeas Clause does not. 

I covered this in the past and there are extended discussions and books on the general issues.  One thing that is striking to me is that Reverdy Johnson, who supported the (Dred Scott v.) Sandford side and later was against use of military commissions in the assassination trials supported Lincoln on this point.

One more thing.  There is the usual citation of Lincoln's "all laws but one" trope.  But, it is not like that was his only argument.  He used it as one last extreme take.  Lincoln still defended himself on the grounds that with the Congress out of session, he had the power to suspend in an emergency. And, when Congress came back (he called a special session), they supported him.  That check is there too -- once called back, Congress can impeach a POTUS for crossing the line. 

Witt notes Oakes is critical of the 1619 Project, which I simply did not read.  The controversy to me seemed overheated, more upset at criticism of the United States.  Oakes appears (glancing over the thing Witt links) seems to have felt the project was overheated in criticizing stuff not taught.  Again, I did not go into the weeds.  Surely, for instance, that is a matter of where you look.  But, Oakes basic arguments still hold here.

Sean Wilentz provided a previous critical review of the Feldman book here. People in the past have found fault with his analysis of certain things.  And, there is a variety of shades of gray on analyzing the Constitution here in general.  My basic argument, however, is that you do not have to say Lincoln "vindicated" it.  

You can say, contra Feldman, that he acted in broad ways within its terms, especially regarding slavery.  For instance, the Constitution calls slaves "persons."  That matters.  There was a common assumption that the Constitution treats them as "property." That isn't actually what the actual text says.  Even Witt argues that Oakes mistakes antebellum thought without saying said thought is compelled by the text. 

And, a basic principle in Witt's discussion contrasts "a state’s authority to free the slaves of its own nationals in wartime was uncontroversial" contra doing so for the "enemy."  You cannot do the latter, as seen by one "abuse" cited in the Declaration of Independence.  But, under the Union's view, the South WERE "nationals."  There seems to be a prime case of talking past each other in that respect.  

The Constitution of 1787 was a compromise that had to address the needs and realities of the times.  It is not wrong to realize this while also noting what evils were accepted in the process.  Still, it is wrong to ignore the true nature of the compromise.  This includes open language that allowed various approaches, including Lincoln's own.  

The Constitution very well advanced slavery.  How could it not realistically?  But, it is somewhat amazing it "enshrined" (to use Feldman's word) so little. Things were very well assumed, furthered in part by political party coalition compromises mixed with racism that until the mid decades of the 19th Century severely slanted things in favor of slavery.

This is far from compelled any more than let's say a sexist interpretation of the Constitution.  One last thing regarding Feldman's reply that equal protection was not recognized in the original Constitution.  Let me quote the exact text:

The document, obviously, thus contained no guarantee of equal protection anywhere, including the Bill of Rights.

Ah, the use of emphasis to cover up a weak case.  Anywhere?  There are  multiple protections of religious equality, including against test oaths and favoring one religion over another.  There is a bar against titles of nobility.  And, there are repeated references of "the people" and "persons" with various rights without any exceptions.  No special classes of "persons" like "men" or "women" having jury trials or something. 

Antebellum thought well recognized some basic concept of equality, the Declaration of Independence not just some highfalutin moral wish casting.  The basic assumption, surely, was basically that an equality principle applied to white adult males though that is pretty significant in a world where property and other caste was well recognized.  

And, others had some basic rights too.  At the very least, white women could not be enslaved akin to blacks.  There was some bare minimum equality in place.  Look at even the 3/5 Compromise exaggerated as "enshrining" slavery (it doesn't even deign to use the word!), which counted non-slaves one by one.  Even free blacks.  A form of equality.  

One of my basic philosophies is that life is complicated.  History and constitutional analysis shows this on a regular basis.