October 25, 2021 • 27 mins
The Broken Constitution is a miniseries by Unknown History from Quick and Dirty Tips and Pushkin Industries. Over three bonus episodes, Noah Feldman talks about how Abraham Lincoln needed to break the Constitution in order to remake it. In this first episode, Noah explains why the US Constitution was built on a compromise that Lincoln devoted himself to preserving. Noah’s book, The Broken Constitution: Lincoln, Slavery, and the Refounding of America, is out November 2 wherever books are sold.
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Speaker 1 (00:15):
Pushkin. This is The Broken Constitution, a miniseries for unknown
history from quick and dirty tips and deep background from
Pushkin Industries. Over three episodes, I'm going to talk about
Abraham Lincoln and how he needed to break the American
(00:37):
Constitution in order to remake it. It's all based on
my new book, The Broken Constitution, Lincoln, Slavery and the
Refounding of America, out November second. If you're listening to
this podcast, you already know that one of the most
important and pressing questions facing the United States today is
whether racism and slavery are encoded into the DNA of
(01:01):
our nation by virtue of being encoded into the US Constitution.
This question is behind debates about who we are, what
we should teach, and what the possibilities are for our
nation going into the future, especially with respect to racial equality.
I wrote this book because I wanted to know the answer.
(01:23):
I've devoted most of my professional life to thinking about
the US Constitution and about other constitutions, whether in Iraq
or Tunisia or anywhere else around the world. I'd written
books about James Madison and the drafting of the US Constitution,
as well as its ratification and I'd also written a
book about the interpretation of the Constitution in the modern period,
(01:45):
starting with the justices appointed by Franklin Delano Roosevelt in
the nineteen thirties and going all the way up into
the nineteen sixties. That study gave me a foundation in
trying to answer the question. But I must tell you
that I was genuinely astonished by many of the things
that I discovered in researching this book, and the answer
(02:06):
that I reached is not the answer that I thought
I was going to reach when I began. My surprise
can be summed up in three simple propositions, each of
which I believed and each of which I now think
is wrong. I thought that from the start our Constitution
(02:27):
in the United States functioned as a higher moral law
guiding us into the future. It did not. I thought
we had the same constitution that we had had since
it was drafted in seventeen eighty seven and ratified in
a couple of years afterwards. As it turns out, we
(02:48):
do not. And perhaps most surprisingly, I always thought of
Abraham Lincoln as the president who saved the US Constitution.
In fact, however, the truth is that Abraham Lincoln did
not save our Constitution. He broke the Constitution three separate times,
(03:09):
in three separate ways, in order to transform it into
something very new and very different. Over the course of
this mini series, I'm going to discuss all three of
these ideas misconceptions, really, and I'm going to tell you
a story, the story of Abraham Lincoln's own engagement with
the Constitution and what it reveals not only about his
(03:32):
tremendous importance as a thinker about the Constitution, but also
about the Constitution itself. In this first episode, I'm going
to suggest that the Constitution Abraham Lincoln supported was not
a moral blueprint for our nation or a higher law
that the great majority of Americans could support and treat
(03:55):
as guiding them into the future. Instead, the Constitution of
the United States until the Civil War was a compromise constitution,
and that compromise was one that Abraham Lincoln himself was
entirely devoted to preserving. What made the Constitution a compromise
(04:19):
everybody remembers from eighth grade Civics that the original Constitution
of seventeen eighty seven contained a major compromise between the
large and the small states. That was the compromise that
created popular representation in the House of Representatives, but treated
all states as the same with respect to representation in
the Senate. That was a big fight in Philadelphia in
(04:42):
the long hot summer of seventeen eighty seven, and it culminated,
indeed in a walkout where the small states told the
large states, unless you give us equal representation in the Senate,
we're not going to participate in the Constitution at all.
But as the summer progressed, the most astute delegates there
began to realize that the real conflict that was going
(05:02):
to emerge in the United States, and they could already
be sensed in the Convention, was not between large and
small states. It was between northern states that were either
free or on their way to becoming free states, and
Southern states that were committed to slavery as crucial to
their economic way of life. The compromise that took place
(05:23):
in seventeen eighty seven between the northern and the Southern
states had three components each and every one of them
was connected to slavery. The first was the three fifths compromise.
The South wanted enslaved persons of African descent to be
counted as full persons for the purpose of representation. Their idea,
(05:47):
of course, was that the enslaved persons would never have
the opportunity to vote, but by counting slaves, Southern states
would have greater representation in the House of Representatives because
slaves made up a significant part of the Southern population.
Northern states, in contrast, did not want to count slaves
at all in total numbers for representation in the House
(06:09):
of Representatives because they believed that because enslaved persons did
not have the right to vote, it followed that they
shouldn't be counted, and that would give the North more
proportional representation in the House of Representatives. The three fifths
compromise was designed to placate both sides. It gave each
(06:30):
side part of what it wanted, and of course, into
the bargain, it had the symbolic effect of treating slaves
as only three fifths of human beings. The second compromise
having to do with slavery was one which we barely
remember today, and that was a guarantee in the Constitution
(06:50):
that the international trade in slaves, importing slaves into the
United States would be protected for twenty years from the
time of the ratification of the Constitution. The idea here
was that in the very deepest part of the South,
especially South Carolina, slaveholders felt that they needed many, many
(07:10):
more slaves than they already had in order to expand
their economies. To do that, they wanted to be sure
of a steady supply of enslaved persons brought from Africa,
and they knew that international opposition to the slave trade,
including opposition in the North, was growing and strong. It's
important to keep in mind here that even many people
(07:33):
who thought that slavery was morally acceptable at the time,
including many in the North, drew the line at the
idea of capturing people, turning them into slaves, and importing
them across international waters to North America. It was not
unusual for people to oppose the slave trade without opposing slavery.
(07:55):
The Constitution guaranteed in an unamendable way that for twenty
years slaves could still be imported. After that, it would
be up to Congress to determine whether the slave trade
would be ended, as indeed it was. The last compromise
is one that it's easy to forget today, but that
was in fact the most significant from the standpoint of
(08:17):
Americans in the eighteen hundreds, and that was the compromise
over the fugitive Slave Clause. The fugitive Slave Clause of
the Constitution specified that if enslaved people were to flee
from slave states in the South two free states in
the North, not only would they not become free by
(08:37):
entering into free territory, but beyond that, they would be
returned to their owners. What was so fundamentally significant about
the fugitive Slave clause was that it implicated the North
fully in the practice of slavery. It meant that even
states that abolished slavery themselves would still have to participate
(09:01):
in the realities of slavery by lending their legal systems
to the capture and return of enslaves to the status
of slavery. You may ask, especially if you've seen the
musical Hamilton, how could it be that Northerners at the
Constitutional Convention, a few of whom were at least skeptical
(09:23):
about the morality of slavery, could have agreed to these propositions.
The short answer is compromise was necessary as a condition
for actually getting the Constitution to be successfully agreed upon
by all sides, and even Hamilton himself, who was perhaps
(09:46):
not as fully committed to abolition as lin Manuel Miranda
would have us think. Hamilton actively defended this compromise, and
he described the three fifths proposition by saying the quote,
it was one result of the spirit of accommodation which
governed the Convention, and without this indulgence, no union could
(10:07):
possibly have been formed. That sentence explicitly articulated what everybody knew.
The Constitution was a compromise, and it was a compromise
between slaveholders and non slaveholders and accommodation without which there
could not have been a continuing union. What did Abraham
(10:31):
Lincoln himself think about this compromise Constitution when he was
a young man living in Illinois. The short answer is
that Lincoln was a complete and total supporter of the
compromise Constitution. When it came to politics, his choice from
early on in his career was to support the Whig
(10:53):
Party and to idolize the founder and leading figure in
the Whig Party, a man called Henry Clay, famous in
American history with the name the Great Compromiser. None of
this is a coincidence. Lincoln didn't have to be a
follower of Clay or a wig. In fact, as a
(11:13):
self made young man at the frontier, he might naturally
have become a follower of Andrew Jackson and the Jacksonian Democrats.
Yet Lincoln's personality, his experiences, and his attitudes drew him
to Clay. That made Lincoln into somebody who was fundamentally
committed to the ideal of compromise. Lincoln's commitment to the
(11:37):
Constitution as a compromised document can be seen in his
first really important political speech, which he gave in eighteen
thirty eight. The speech was a defense of what Lincoln
called the perpetuation of our political institutions. His main point
was that unless Americans would abide by the rule of law,
(11:59):
the Constitution and the country were doomed to collapse. In
the course of this speech, Lincoln insisted that the overarching
value of constitutional life must be reason, what he called
sober reason, cold calculating, unimpassioned reason, and this reason, Lincoln said,
(12:20):
should be molded into a reverence for the Constitution and laws.
The Constitution must be revered for its coldness, its lack
of passion, and its commitment to reason. Starkly absent from
this account was any commitment to the idea that the
Constitution was fundamentally morally right. Lincoln, of course himself was
(12:45):
not fond of slavery from the moment. We have a
record of what he thought about it. He considered the
practice cruel and preferred that it not exists. And yet
Lincoln remained committed to the idea that slavery needed to
be preserved in the Constitution. How did Lincoln and other
(13:05):
mainstream figures in nineteenth century America reconcile these two thoughts.
In Lincoln's case, the answer was one that he inherited
from Henry Clay, who himself had inherited it from James
Madison and James Monroe. This was the idea, the hope, really,
(13:26):
the aspiration at best, that slavery would die what Lincoln
called unnatural death. The theory here was that somehow, as
if by magic, slavery would cease to be economically viable,
and that Southerners would, as a consequence, stop relying on
it as the basis for their economies. As a loyal
(13:48):
son of the old Northwest and of Illinois, Lincoln himself
was not committed to slavery, which he always viewed negatively,
but the world in which he lived and the economy
of the people whom he eventually sought to represent as
he entered politics, depended on the expansion of the country
across the continent, eventually all the way to California, and
(14:12):
that expansion, in turn was completely bound up in the
expansion of slavery. Over the course of the eighteen hundreds,
the Constitution was therefore gradually reaffirmed as a blueprint for
the capacity of the country to expand. In order to
(14:32):
cross the continent and achieve what came to be called
manifest destiny, the country needed to be unified. It couldn't
be broken into two or three different mini republics, which
might establish tariffs and other limitations on trade as among
them now. Notwithstanding the felt necessity by Northerners, Westerners, and
(14:55):
Southerners of maintaining unity, the eighteen hundreds still saw a
succession of major crises, which played themselves out as crises
around the Constitution. The Constitution, in practical terms, was a
compromised deal between slaveholders and non slaveholders designed to facilitate expansion.
(15:20):
But each and every time that the country expanded to
include territory that would become part of a new state,
the compromise came into doubt. If they were free, that
might give the North an ultimate advantage and the capacity
to alter the terms of the deal and make slavery
(15:40):
less powerful or indeed eliminated. If, on the other hand,
the new states were to be admitted to the Union
as slave states, that would create circumstances where the slave
states might be able over time to transform the Union
into an entirely slave entity, in which the Northern states,
even if they didn't have slavery, would be further and
(16:02):
further implicated in the practice. Not by the design of
seventeen eighty seven, but rather by gradual realism. A fifty
fifty balance in the Senate had been established between slave
states and free states, and the crises of the eighteen twenties, thirties, forties,
(16:25):
and fifties, coupled with the compromises that purported to save them,
were all focused on the question of the balance of
the Senate as it would be shaped by the admission
of new states. The paradox, then was that the compromises
were necessary to maintain balance, and the balance was necessary
(16:46):
to achieve expansion, but the expansion itself created doubt about
the capacities of the compromise to exist. Throughout this period
of time, Lincoln committed himself to a centrist position. He
repeatedly denounced abolitionists as people who were doing something unwise,
(17:08):
namely trying to undermine the very balance that was crucial
to the existence of compromise. At the same time, he
maintained a moral objection to slavery, one that he expressed
more and more clearly during these years. The way for
Lincoln and others to achieve some kind of coherence, if
(17:30):
you can call it, that, was to remind themselves and
everybody else that the Constitution was a set of rules
that deserved reverence and obedience because everyone had promised to
follow it as part of a compromised deal. The idea
that you had a moral duty to keep an agreement
which was itself all about an immoral arrangement, required tremendous
(17:54):
conscious analysis of the problem and simultaneously tremendous denial of
the fundamental immorality that underlay it. And it's not as
though nobody in the United States at the time was
thinking about the contradictions of this compromise. They were abolitionists
(18:15):
in the United States in the eighteen hundreds made it
extraordinarily clear that to agree to the compromise Constitution was
to be committed to what the abolitionist Wendell Phillips called
an agreement with death and a covenant with Hell. Before
ending this episode, I want to share with you some
(18:37):
fascinating material that I was able to discover with the
help of my research assistance. This material consists of debates
among African American abolitionists in the eighteen thirties, forties, and
fifties about whether the original Constitution was itself so immoral
that any accommodation to it made the person who accommodated
(19:01):
also immoral. Consider as an example, a fascinating debate that
took place on January sixth, eighteen fifty one, at the
sixth State Convention of Colored Citizens of Ohio, held in Columbus.
State conventions of free African Americans had become common by
the eighteen fifties. In this particular convention, a debate broke
(19:25):
out between two significant African American abolitionists, one a man
called Hezekiah Ford Douglas, who had escaped being a slave
at the age of fifteen and went on later to
command his own unit in the Civil War, and on
the other side, a man called William Howard Day, originally
born free in New York, a graduate of Oberlin College,
(19:47):
who would become the founder and editor of a weekly
Cleveland newspaper with the extraordinary name The Aliened American. The
subject of the debate was whether it was appropriate for
African Americans who were free to vote in states where
they were free to vote, such as Ohio. Hezekiah, for Douglas,
(20:10):
took the view that it was immoral for a free
African American to vote in a federal election, because to
do so was to implicate oneself in the immorality of
the Compromise Constitution. As Douglas put it, I hold sir,
that the Constitution of the United States is pro slavery,
(20:31):
considered so by those who framed it and construed to
that end ever since its adoption. This was simply a
historical fact, as Douglas and his listeners knew, the Compromise
Constitution did enshrine slavery, and Douglas went on, we are, all,
according to Congressional enactments, involved in the horrible system of
(20:54):
human bondage by virtue of the fact that Congress had
enacted the Fugitive Slave Act in fulfillment of the constitutional
promise of the Fugitive Slave Clause. Douglas was saying everyone
who voted for Congress was morally implicated in their perpetuation
of slavery. His conclusion was, although African Americans were free
(21:14):
to vote in federal elections in Ohio, they should not
do so. William Howard Day fundamentally disagreed. He took the
view that although the Constitution could be construed or interpreted
as pro slavery, he refused to interpret it that way.
In fact, he said, even though the Supreme Court of
(21:37):
the United States has given aid to slavery by their
unjust and illegal decisions, that is not the Constitution. Those decisions,
he said, are not that under which I vote. Day
drew an analogy between the Bible, which could be misinterpreted
but should be interpreted correctly, and the Constitution, which had
been misinterpreted, he said, but should be interpreted differently. Day
(22:02):
went on to give a pragmatic explanation for why he
wanted to rely on the Constitution as a weapon to
fight against slavery. Sir, he said, coming up as I
do in the midst of three millions of men in chains,
and five hundred thousand only half free. I consider every
instrument precious which guarantees to me liberty. I consider the
(22:24):
Constitution a foundation of American liberties, and wrapping myself in
the flag of the nation, I would plant myself upon
that Constitution, and using the weapons they have given me,
I would appeal to the American people for the rights
thus guaranteed. William Howard Day was saying that whatever the
immorality of a constitution might be, as applied, he preferred
(22:46):
to wrap himself in the Constitution as a patriotic basis
for making an anti slavery argument. You could see here,
in almost all of its detail, a version of the
argument that we are still having today as a country.
Should the Constitution be interpreted in the light of the
recognition of slavery that initially included, or should the Stution
(23:09):
instead be read against the grain as a document that
could be used to fight against slavery. Notwithstanding that history,
in this particular debate, in the years before the Civil
War and the eventual emancipation of slaves and the passage
of the Fourteenth Amendment, Hezekiah for Douglas got the last word.
(23:31):
Responding today's plan of wrapping himself in the flag, Douglas said,
the gentleman may wrap the stars and stripe of his
country around him forty times, and with a declaration of
independence in one hand and the constitution of our common
country and the other, may seat himself under the shadow
of the frowning monument of Bunker Hill. And if the slaveholder,
(23:51):
under the constitution and with the fugitive bill don't find you,
then there don't exist a constitution. Hezekiah for Douglas was
saying that even if a black man were to be
in Massachusetts, where slavery was outlawed, and sitting under the
Bunker Hill Monument in Charlestown, and wrapped in the stars
and stripes, with the Constitution in one hand and the
(24:13):
declaration in the other, he would still be treated by
the law as an escaped slave, and the federal fugitive
Slave law would still lead the slave catcher to grab
him up in Massachusetts and treat him as a slave.
In the next several episodes, I'm going to describe to
you the crisis of Southern Secession, the war, and the
(24:38):
consequences of Lincoln's three major acts of breaking the Constitution
as it was known at the time. I'll suggest you
that those acts eventually had a transformative effect on the
Constitution as it stood up to the moment of the
Civil War. That in turn will lead me to suggest
(24:59):
that the Compromise Constitution that existed up to the Civil War,
with its character of fundamental willingness to incorporate immorality, is
not the Constitution that we still have today. For this episode, though,
I want to leave you with the words of Frederick Douglas,
the most important abolitionist of them all. Over the course
(25:22):
of his career, Douglas had different points of view on
how the Constitution should be considered. Early on, he was
committed to the view that it was fundamentally immoral. Later,
in the run up to the Civil War, he shifted
to the alternative view that the Constitution should be read
against its own words and against its own history, as
a document that could promote freedom in between. However, in
(25:46):
eighteen fifty Douglas describe things in words that seemed to
my mind entirely accurate. Here's what he said about the
Compromise Constitution. Liberty and slavery opposite, as heaven and hell
are both in the Constitution, Douglas said, and the oath
to support the Constitution is an oath to perform that
(26:10):
which God has made impossible. The Constitution was, Douglas concluded,
at war with itself. But those words that an oath
to support the Constitution is an oath to perform that
which God has made impossible a self contradiction, and the
(26:31):
support of a document at war with itself precisely captures
the situation that Abraham Lincoln would find himself in just
ten years after Douglas spoke those words. When Lincoln was
elected president, the Southern States seceded, and he was required
to consider what the oath of office to support, protect,
(26:53):
and defend the Constitution should mean in practice to him.
To hear more about that, listen to the next episode
of this podcast, The Broken Constitution, coming to you in
one week. If you can't wait, you can listen to
(27:15):
the next episode a few days early on the Unknown
History podcast from Quick and Dirty Tips. Find it in
the show notes or your favorite podcast app, and go
ahead and pre order or by The Broken Constitution from
your favorite local bookstore. It's out on November second. The
(27:36):
Broken Constitution was produced by Nathan's SEMs and Quick and
Dirty Tips, a proud part of McMillan publisher's home of
far Strauss and Jeru, who are publishing my book
Pushkin. This is The Broken Constitution, a miniseries for unknown
history from quick and dirty tips and deep background from
Pushkin Industries. Over three episodes, I'm going to talk about
Abraham Lincoln and how he needed to break the American
(00:37):
Constitution in order to remake it. It's all based on
my new book, The Broken Constitution, Lincoln, Slavery and the
Refounding of America, out November second. If you're listening to
this podcast, you already know that one of the most
important and pressing questions facing the United States today is
whether racism and slavery are encoded into the DNA of
(01:01):
our nation by virtue of being encoded into the US Constitution.
This question is behind debates about who we are, what
we should teach, and what the possibilities are for our
nation going into the future, especially with respect to racial equality.
I wrote this book because I wanted to know the answer.
(01:23):
I've devoted most of my professional life to thinking about
the US Constitution and about other constitutions, whether in Iraq
or Tunisia or anywhere else around the world. I'd written
books about James Madison and the drafting of the US Constitution,
as well as its ratification and I'd also written a
book about the interpretation of the Constitution in the modern period,
(01:45):
starting with the justices appointed by Franklin Delano Roosevelt in
the nineteen thirties and going all the way up into
the nineteen sixties. That study gave me a foundation in
trying to answer the question. But I must tell you
that I was genuinely astonished by many of the things
that I discovered in researching this book, and the answer
(02:06):
that I reached is not the answer that I thought
I was going to reach when I began. My surprise
can be summed up in three simple propositions, each of
which I believed and each of which I now think
is wrong. I thought that from the start our Constitution
(02:27):
in the United States functioned as a higher moral law
guiding us into the future. It did not. I thought
we had the same constitution that we had had since
it was drafted in seventeen eighty seven and ratified in
a couple of years afterwards. As it turns out, we
(02:48):
do not. And perhaps most surprisingly, I always thought of
Abraham Lincoln as the president who saved the US Constitution.
In fact, however, the truth is that Abraham Lincoln did
not save our Constitution. He broke the Constitution three separate times,
(03:09):
in three separate ways, in order to transform it into
something very new and very different. Over the course of
this mini series, I'm going to discuss all three of
these ideas misconceptions, really, and I'm going to tell you
a story, the story of Abraham Lincoln's own engagement with
the Constitution and what it reveals not only about his
(03:32):
tremendous importance as a thinker about the Constitution, but also
about the Constitution itself. In this first episode, I'm going
to suggest that the Constitution Abraham Lincoln supported was not
a moral blueprint for our nation or a higher law
that the great majority of Americans could support and treat
(03:55):
as guiding them into the future. Instead, the Constitution of
the United States until the Civil War was a compromise constitution,
and that compromise was one that Abraham Lincoln himself was
entirely devoted to preserving. What made the Constitution a compromise
(04:19):
everybody remembers from eighth grade Civics that the original Constitution
of seventeen eighty seven contained a major compromise between the
large and the small states. That was the compromise that
created popular representation in the House of Representatives, but treated
all states as the same with respect to representation in
the Senate. That was a big fight in Philadelphia in
(04:42):
the long hot summer of seventeen eighty seven, and it culminated,
indeed in a walkout where the small states told the
large states, unless you give us equal representation in the Senate,
we're not going to participate in the Constitution at all.
But as the summer progressed, the most astute delegates there
began to realize that the real conflict that was going
(05:02):
to emerge in the United States, and they could already
be sensed in the Convention, was not between large and
small states. It was between northern states that were either
free or on their way to becoming free states, and
Southern states that were committed to slavery as crucial to
their economic way of life. The compromise that took place
(05:23):
in seventeen eighty seven between the northern and the Southern
states had three components each and every one of them
was connected to slavery. The first was the three fifths compromise.
The South wanted enslaved persons of African descent to be
counted as full persons for the purpose of representation. Their idea,
(05:47):
of course, was that the enslaved persons would never have
the opportunity to vote, but by counting slaves, Southern states
would have greater representation in the House of Representatives because
slaves made up a significant part of the Southern population.
Northern states, in contrast, did not want to count slaves
at all in total numbers for representation in the House
(06:09):
of Representatives because they believed that because enslaved persons did
not have the right to vote, it followed that they
shouldn't be counted, and that would give the North more
proportional representation in the House of Representatives. The three fifths
compromise was designed to placate both sides. It gave each
(06:30):
side part of what it wanted, and of course, into
the bargain, it had the symbolic effect of treating slaves
as only three fifths of human beings. The second compromise
having to do with slavery was one which we barely
remember today, and that was a guarantee in the Constitution
(06:50):
that the international trade in slaves, importing slaves into the
United States would be protected for twenty years from the
time of the ratification of the Constitution. The idea here
was that in the very deepest part of the South,
especially South Carolina, slaveholders felt that they needed many, many
(07:10):
more slaves than they already had in order to expand
their economies. To do that, they wanted to be sure
of a steady supply of enslaved persons brought from Africa,
and they knew that international opposition to the slave trade,
including opposition in the North, was growing and strong. It's
important to keep in mind here that even many people
(07:33):
who thought that slavery was morally acceptable at the time,
including many in the North, drew the line at the
idea of capturing people, turning them into slaves, and importing
them across international waters to North America. It was not
unusual for people to oppose the slave trade without opposing slavery.
(07:55):
The Constitution guaranteed in an unamendable way that for twenty
years slaves could still be imported. After that, it would
be up to Congress to determine whether the slave trade
would be ended, as indeed it was. The last compromise
is one that it's easy to forget today, but that
was in fact the most significant from the standpoint of
(08:17):
Americans in the eighteen hundreds, and that was the compromise
over the fugitive Slave Clause. The fugitive Slave Clause of
the Constitution specified that if enslaved people were to flee
from slave states in the South two free states in
the North, not only would they not become free by
(08:37):
entering into free territory, but beyond that, they would be
returned to their owners. What was so fundamentally significant about
the fugitive Slave clause was that it implicated the North
fully in the practice of slavery. It meant that even
states that abolished slavery themselves would still have to participate
(09:01):
in the realities of slavery by lending their legal systems
to the capture and return of enslaves to the status
of slavery. You may ask, especially if you've seen the
musical Hamilton, how could it be that Northerners at the
Constitutional Convention, a few of whom were at least skeptical
(09:23):
about the morality of slavery, could have agreed to these propositions.
The short answer is compromise was necessary as a condition
for actually getting the Constitution to be successfully agreed upon
by all sides, and even Hamilton himself, who was perhaps
(09:46):
not as fully committed to abolition as lin Manuel Miranda
would have us think. Hamilton actively defended this compromise, and
he described the three fifths proposition by saying the quote,
it was one result of the spirit of accommodation which
governed the Convention, and without this indulgence, no union could
(10:07):
possibly have been formed. That sentence explicitly articulated what everybody knew.
The Constitution was a compromise, and it was a compromise
between slaveholders and non slaveholders and accommodation without which there
could not have been a continuing union. What did Abraham
(10:31):
Lincoln himself think about this compromise Constitution when he was
a young man living in Illinois. The short answer is
that Lincoln was a complete and total supporter of the
compromise Constitution. When it came to politics, his choice from
early on in his career was to support the Whig
(10:53):
Party and to idolize the founder and leading figure in
the Whig Party, a man called Henry Clay, famous in
American history with the name the Great Compromiser. None of
this is a coincidence. Lincoln didn't have to be a
follower of Clay or a wig. In fact, as a
(11:13):
self made young man at the frontier, he might naturally
have become a follower of Andrew Jackson and the Jacksonian Democrats.
Yet Lincoln's personality, his experiences, and his attitudes drew him
to Clay. That made Lincoln into somebody who was fundamentally
committed to the ideal of compromise. Lincoln's commitment to the
(11:37):
Constitution as a compromised document can be seen in his
first really important political speech, which he gave in eighteen
thirty eight. The speech was a defense of what Lincoln
called the perpetuation of our political institutions. His main point
was that unless Americans would abide by the rule of law,
(11:59):
the Constitution and the country were doomed to collapse. In
the course of this speech, Lincoln insisted that the overarching
value of constitutional life must be reason, what he called
sober reason, cold calculating, unimpassioned reason, and this reason, Lincoln said,
(12:20):
should be molded into a reverence for the Constitution and laws.
The Constitution must be revered for its coldness, its lack
of passion, and its commitment to reason. Starkly absent from
this account was any commitment to the idea that the
Constitution was fundamentally morally right. Lincoln, of course himself was
(12:45):
not fond of slavery from the moment. We have a
record of what he thought about it. He considered the
practice cruel and preferred that it not exists. And yet
Lincoln remained committed to the idea that slavery needed to
be preserved in the Constitution. How did Lincoln and other
(13:05):
mainstream figures in nineteenth century America reconcile these two thoughts.
In Lincoln's case, the answer was one that he inherited
from Henry Clay, who himself had inherited it from James
Madison and James Monroe. This was the idea, the hope, really,
(13:26):
the aspiration at best, that slavery would die what Lincoln
called unnatural death. The theory here was that somehow, as
if by magic, slavery would cease to be economically viable,
and that Southerners would, as a consequence, stop relying on
it as the basis for their economies. As a loyal
(13:48):
son of the old Northwest and of Illinois, Lincoln himself
was not committed to slavery, which he always viewed negatively,
but the world in which he lived and the economy
of the people whom he eventually sought to represent as
he entered politics, depended on the expansion of the country
across the continent, eventually all the way to California, and
(14:12):
that expansion, in turn was completely bound up in the
expansion of slavery. Over the course of the eighteen hundreds,
the Constitution was therefore gradually reaffirmed as a blueprint for
the capacity of the country to expand. In order to
(14:32):
cross the continent and achieve what came to be called
manifest destiny, the country needed to be unified. It couldn't
be broken into two or three different mini republics, which
might establish tariffs and other limitations on trade as among
them now. Notwithstanding the felt necessity by Northerners, Westerners, and
(14:55):
Southerners of maintaining unity, the eighteen hundreds still saw a
succession of major crises, which played themselves out as crises
around the Constitution. The Constitution, in practical terms, was a
compromised deal between slaveholders and non slaveholders designed to facilitate expansion.
(15:20):
But each and every time that the country expanded to
include territory that would become part of a new state,
the compromise came into doubt. If they were free, that
might give the North an ultimate advantage and the capacity
to alter the terms of the deal and make slavery
(15:40):
less powerful or indeed eliminated. If, on the other hand,
the new states were to be admitted to the Union
as slave states, that would create circumstances where the slave
states might be able over time to transform the Union
into an entirely slave entity, in which the Northern states,
even if they didn't have slavery, would be further and
(16:02):
further implicated in the practice. Not by the design of
seventeen eighty seven, but rather by gradual realism. A fifty
fifty balance in the Senate had been established between slave
states and free states, and the crises of the eighteen twenties, thirties, forties,
(16:25):
and fifties, coupled with the compromises that purported to save them,
were all focused on the question of the balance of
the Senate as it would be shaped by the admission
of new states. The paradox, then was that the compromises
were necessary to maintain balance, and the balance was necessary
(16:46):
to achieve expansion, but the expansion itself created doubt about
the capacities of the compromise to exist. Throughout this period
of time, Lincoln committed himself to a centrist position. He
repeatedly denounced abolitionists as people who were doing something unwise,
(17:08):
namely trying to undermine the very balance that was crucial
to the existence of compromise. At the same time, he
maintained a moral objection to slavery, one that he expressed
more and more clearly during these years. The way for
Lincoln and others to achieve some kind of coherence, if
(17:30):
you can call it, that, was to remind themselves and
everybody else that the Constitution was a set of rules
that deserved reverence and obedience because everyone had promised to
follow it as part of a compromised deal. The idea
that you had a moral duty to keep an agreement
which was itself all about an immoral arrangement, required tremendous
(17:54):
conscious analysis of the problem and simultaneously tremendous denial of
the fundamental immorality that underlay it. And it's not as
though nobody in the United States at the time was
thinking about the contradictions of this compromise. They were abolitionists
(18:15):
in the United States in the eighteen hundreds made it
extraordinarily clear that to agree to the compromise Constitution was
to be committed to what the abolitionist Wendell Phillips called
an agreement with death and a covenant with Hell. Before
ending this episode, I want to share with you some
(18:37):
fascinating material that I was able to discover with the
help of my research assistance. This material consists of debates
among African American abolitionists in the eighteen thirties, forties, and
fifties about whether the original Constitution was itself so immoral
that any accommodation to it made the person who accommodated
(19:01):
also immoral. Consider as an example, a fascinating debate that
took place on January sixth, eighteen fifty one, at the
sixth State Convention of Colored Citizens of Ohio, held in Columbus.
State conventions of free African Americans had become common by
the eighteen fifties. In this particular convention, a debate broke
(19:25):
out between two significant African American abolitionists, one a man
called Hezekiah Ford Douglas, who had escaped being a slave
at the age of fifteen and went on later to
command his own unit in the Civil War, and on
the other side, a man called William Howard Day, originally
born free in New York, a graduate of Oberlin College,
(19:47):
who would become the founder and editor of a weekly
Cleveland newspaper with the extraordinary name The Aliened American. The
subject of the debate was whether it was appropriate for
African Americans who were free to vote in states where
they were free to vote, such as Ohio. Hezekiah, for Douglas,
(20:10):
took the view that it was immoral for a free
African American to vote in a federal election, because to
do so was to implicate oneself in the immorality of
the Compromise Constitution. As Douglas put it, I hold sir,
that the Constitution of the United States is pro slavery,
(20:31):
considered so by those who framed it and construed to
that end ever since its adoption. This was simply a
historical fact, as Douglas and his listeners knew, the Compromise
Constitution did enshrine slavery, and Douglas went on, we are, all,
according to Congressional enactments, involved in the horrible system of
(20:54):
human bondage by virtue of the fact that Congress had
enacted the Fugitive Slave Act in fulfillment of the constitutional
promise of the Fugitive Slave Clause. Douglas was saying everyone
who voted for Congress was morally implicated in their perpetuation
of slavery. His conclusion was, although African Americans were free
(21:14):
to vote in federal elections in Ohio, they should not
do so. William Howard Day fundamentally disagreed. He took the
view that although the Constitution could be construed or interpreted
as pro slavery, he refused to interpret it that way.
In fact, he said, even though the Supreme Court of
(21:37):
the United States has given aid to slavery by their
unjust and illegal decisions, that is not the Constitution. Those decisions,
he said, are not that under which I vote. Day
drew an analogy between the Bible, which could be misinterpreted
but should be interpreted correctly, and the Constitution, which had
been misinterpreted, he said, but should be interpreted differently. Day
(22:02):
went on to give a pragmatic explanation for why he
wanted to rely on the Constitution as a weapon to
fight against slavery. Sir, he said, coming up as I
do in the midst of three millions of men in chains,
and five hundred thousand only half free. I consider every
instrument precious which guarantees to me liberty. I consider the
(22:24):
Constitution a foundation of American liberties, and wrapping myself in
the flag of the nation, I would plant myself upon
that Constitution, and using the weapons they have given me,
I would appeal to the American people for the rights
thus guaranteed. William Howard Day was saying that whatever the
immorality of a constitution might be, as applied, he preferred
(22:46):
to wrap himself in the Constitution as a patriotic basis
for making an anti slavery argument. You could see here,
in almost all of its detail, a version of the
argument that we are still having today as a country.
Should the Constitution be interpreted in the light of the
recognition of slavery that initially included, or should the Stution
(23:09):
instead be read against the grain as a document that
could be used to fight against slavery. Notwithstanding that history,
in this particular debate, in the years before the Civil
War and the eventual emancipation of slaves and the passage
of the Fourteenth Amendment, Hezekiah for Douglas got the last word.
(23:31):
Responding today's plan of wrapping himself in the flag, Douglas said,
the gentleman may wrap the stars and stripe of his
country around him forty times, and with a declaration of
independence in one hand and the constitution of our common
country and the other, may seat himself under the shadow
of the frowning monument of Bunker Hill. And if the slaveholder,
(23:51):
under the constitution and with the fugitive bill don't find you,
then there don't exist a constitution. Hezekiah for Douglas was
saying that even if a black man were to be
in Massachusetts, where slavery was outlawed, and sitting under the
Bunker Hill Monument in Charlestown, and wrapped in the stars
and stripes, with the Constitution in one hand and the
(24:13):
declaration in the other, he would still be treated by
the law as an escaped slave, and the federal fugitive
Slave law would still lead the slave catcher to grab
him up in Massachusetts and treat him as a slave.
In the next several episodes, I'm going to describe to
you the crisis of Southern Secession, the war, and the
(24:38):
consequences of Lincoln's three major acts of breaking the Constitution
as it was known at the time. I'll suggest you
that those acts eventually had a transformative effect on the
Constitution as it stood up to the moment of the
Civil War. That in turn will lead me to suggest
(24:59):
that the Compromise Constitution that existed up to the Civil War,
with its character of fundamental willingness to incorporate immorality, is
not the Constitution that we still have today. For this episode, though,
I want to leave you with the words of Frederick Douglas,
the most important abolitionist of them all. Over the course
(25:22):
of his career, Douglas had different points of view on
how the Constitution should be considered. Early on, he was
committed to the view that it was fundamentally immoral. Later,
in the run up to the Civil War, he shifted
to the alternative view that the Constitution should be read
against its own words and against its own history, as
a document that could promote freedom in between. However, in
(25:46):
eighteen fifty Douglas describe things in words that seemed to
my mind entirely accurate. Here's what he said about the
Compromise Constitution. Liberty and slavery opposite, as heaven and hell
are both in the Constitution, Douglas said, and the oath
to support the Constitution is an oath to perform that
(26:10):
which God has made impossible. The Constitution was, Douglas concluded,
at war with itself. But those words that an oath
to support the Constitution is an oath to perform that
which God has made impossible a self contradiction, and the
(26:31):
support of a document at war with itself precisely captures
the situation that Abraham Lincoln would find himself in just
ten years after Douglas spoke those words. When Lincoln was
elected president, the Southern States seceded, and he was required
to consider what the oath of office to support, protect,
(26:53):
and defend the Constitution should mean in practice to him.
To hear more about that, listen to the next episode
of this podcast, The Broken Constitution, coming to you in
one week. If you can't wait, you can listen to
(27:15):
the next episode a few days early on the Unknown
History podcast from Quick and Dirty Tips. Find it in
the show notes or your favorite podcast app, and go
ahead and pre order or by The Broken Constitution from
your favorite local bookstore. It's out on November second. The
(27:36):
Broken Constitution was produced by Nathan's SEMs and Quick and
Dirty Tips, a proud part of McMillan publisher's home of
far Strauss and Jeru, who are publishing my book
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