November 8, 2021 • 40 mins
The Broken Constitution is a miniseries by Unknown History from Quick and Dirty Tips and Pushkin Industries. In this final bonus episode, Noah Feldman explains the contradictions and calculations Lincoln made as he drafted The Emancipation Proclamation and the long-term implications of Lincoln’s decision to break and remake the US Constitution.
Noah’s Feldman’s book, The Broken Constitution: Lincoln, Slavery, and the Refounding of America, is out now.
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Episode Transcript
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Speaker 1 (00:15):
Pushkin. Welcome to episode three of my podcast on the
Broken Constitution, Lincoln, Slavery, and the Refounding of America. In
episode one, I talked about how the Constitution of seventeen
eighty seven and the way that it was a compromise
(00:37):
between slave states and free states in order to preserve
and enable the expansion of the Union. In episode two,
I brought us into the breaking of that Constitution by
the Confederacy and Abraham Lincoln's corresponding breaking of the Constitution
as it was then understood, both by going to war
(00:57):
to coerce the Southern States back into the Union, and
then by suspending Habeas corpus unilaterally, even though that was
a power reserve to Congress, and through that becoming a
kind of a dictator, one who suspended the freedom of
expression in the United States through the duration of the war,
arresting ultimately many thousands of people and shutting down hundreds
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of newspapers. In today's episode, I want to turn to
the most memorable, significant, and consequential breaking of the Constitution
that Abraham Lincoln achieved, the one that had the effect
of transforming not only the meaning of the Civil War,
but transforming the Constitution itself in the most fundamental way,
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so much so that the Constitution of today is no
longer the Constitution of seventeen eighty seven, but something new
and different, the Constitution of Abraham Lincoln, and then ultimately
the Constitution of the Reconstruction Amendments, the thirteenth, fourteenth, and
fifteenth Amendments. To do that, we have to begin with
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a recognition of a fact that we've effectively supprest, and
that is that when the Civil War began, Abraham Lincoln
remained exactly as committed to the compromised Constitution and therefore
to the preservation of slavery as he had been through
the entirety of his political career up to that point.
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The evidence that indicates the depth of this comes from
Abraham Lincoln's first inaugural address. Now you may be thinking
to yourself, well, wait a minute, what was Lincoln's first
inaugural address. His second inaugural address, which i'll talk about
a bit later in this podcast, is part of the
canon of American political and constitutional thought. When you visit
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the Lincoln Memorial, it's right up there on one of
the walls, across from the Gettysburg Address. The other one
of Lincoln's most famous speeches, But the first Inaugural Address
is all but forgotten, and the reason for that is
that it began in its first full power graph by
quoting a statement that Lincoln had made in debating Stephen
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Douglas when he ran for the Senate in eighteen fifty eight,
and in it Lincoln said, quote, I have no purpose,
directly or indirectly to interfere with the institution of slavery
in the states where it exists. I believe I have
no lawful right to do so, and I have no
inclination to do so. The reason for that was straightforward,
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Southern secession needed to be reversed. Lincoln saw his goal
as recreating the Union. The Union had always existed on
the basis of a compromise over slavery, and he had
no idea of any possible mode of recreating the Union
without recreating the compromise over slavery. His promise in the
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Inaugural Address to respect the institution of slavery was therefore
a crucial part of his vision of how to restore
the Union. This view continued through the first months of
Lincoln's presidency. At the end of August of eighteen sixty one,
John C. Fremont, who had been the eighteen fifty six
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Republican presidential candidate and whom Lincoln had made a general
in Missouri, announced that he was freeing the slaves of
all rebels found in his territory. This, in short, was
pretty fundamentally similar to what would be Lincoln's active emancipation.
More than a year later, Lincoln wrote to Fremont and
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told him, no, you cannot do this. I am requesting
that you retract your emancipation order. Fremont said, I'm not
going to do that. If you want the order reversed,
you have to do it. So Lincoln fired Fremont and
reversed the order himself. In a letter that Lincoln wrote
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to a friend just a few days later on September
twenty one, eighteen sixty seven, he stood behind his decision
regarding Fremont's emancipation order. The proclamation, he said, is and
I quote, simply dictatorship. It assumes that the general may
do anything he pleases, confiscate the lands, and free the
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slaves of loyal people as well as disloyal ones. In
other words, Lincoln believed that for a general to use
his war powers to free slaves was an act of dictatorship,
and he was not using that term in the positive
sense of the word. For Lincoln, dictatorship was wrong, and
the Constitution did not authorize him or therefore the General's
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working for him to free slaves as a matter of
military necessity. It took Lincoln more than a year for
his views to evolve and change. In the book The
Broken Constitution, I take the reader day by day, just
about sometimes even minute by minute, through the process that
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Lincoln went through to shift his views from the view
that it would be an active dictatorship to free slaves
to the view that perhaps he ought to do so himself.
To summarize it here, I would say that there were
two major forces that push Lincoln in this direction. The
first was a circumstantial one. He gradually realized that it
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would be difficult or impossible for him to win the
war by creating a sufficient incentive for the Southern States
to rejoin the Union voluntarily. As long as Lincoln thought
that the Southern States might voluntarily rejoin, it was necessary
to maintain the possibility of compromise, and that compromise, in
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turn required preserving slavery. But if it turned out that
the Southern States were not going to compromise, We're not
going to return voluntarily, then what followed from that was
that it was at least possible to impose an outcome
to the war on them. If that solution were therefore
to be imposed by military force, Lincoln had the possibility
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at least of changing the situation with respect to the
compromised Constitution as it existed before the war. The new
constitution that would then have to emerge would no longer
be based on a compromise. It would instead be based
on a principle, and indeed on a moral principle, namely
the moral principle of the end of slavery and the
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equality of African Americans. Lincoln did not deceive himself into
thinking the Southern States would ever agree to this. This
was an outcome they would have to be imposed by
military force. The second element that contributed most fundamentally to
Lincoln changing his views was the depth of his embrace
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of the idea that, through military necessity, he was authorized
by the Constitution to do whatever it took to win
the war. Here, his suspension of habeas corpus and his
suspension of the free press were actually the groundwork for
Lincoln's realization that if he could do that, he could
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do anything, and anything included breaking the Constitution as he
had always understood it, and that included emancipating slaves. Remember that,
all the way back early in his career, in eighteen
thirty eight, in his Lyceum address which I mentioned in
Episode one, Lincoln had said that what made a dictator
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a caesar or a Napoleon was the act of emancipating
slaves or enslaving freemen. Gradually he had come to the
view that that act, which was he said in eighteen
thirty eight, a fundamental violation of the principles of the Constitution,
was permissible to him in wartime, because in wartime, and
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under the circumstance senses of the broken Constitution, he could
then further break the Constitution in order to win the war.
Lincoln first introduced this idea to his colleagues in the
cabinet on July twenty second of eighteen sixty two, a
year and several months after he had assumed the presidency.
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At the time, he still hoped that there would be
some way to introduce compensated emancipation money to be paid
to those people who were not disloyal and still had
their slaves taken. When he introduced the idea to his cabinet,
the cabinet was so shocked that it essentially reacted by
telling him that emancipation would be a terrible mistake. From this,
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Lincoln realized that he needed to do more to introduce
the idea of emancipation, not only to his cabinet, but
to the country, which he knew would hold similar views
to those of the cabinet. He spent the rest of
the summer and the fall of eighteen sixty two gradually
introducing ideas associated with emancipation into the public eye. The
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way he did that, seen in our terms, is not
necessarily very appealing. Here, Lincoln the politician was not acting
as Lincoln the moralist. An exemplary and dramatic moment in
Lincoln's efforts to acclimate the country to the possibility of
emancipation came in August of eighteen sixty two, when Lincoln
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held a meeting with a five member delegation of African
Americans in the White House. The men he invited were
part of the city's educated black elite. One Edward Thomas,
the chairman of the delegation, was a member of one
of the city's black debating societies, a collector of fine
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art and rare coins, and the proud owner of a
library of six hundred books, an enormous library for the time.
The others had similar elite status. Lincoln brought them into
the White House, and instead of asking them what their
views were about the possibility of emancipation, or how he
should do things going forward, or really listening to them
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at all, Lincoln talked at them. And what he told
them was nothing short of astonishing to our ears. What
Lincoln told them had two parts. The first was that
the long term solution to the problem of slavery was
not merely to free black people, but for black people
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to voluntary leave the United States and be resettled somewhere else,
either in Africa or in Central America, in circumstances where
they would be far from white people and where the
hatred that subsisted between the two races, according to Lincoln,
would be resolved by effectively a kind of divorce. The
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delegation of African Americans listened with a stony silence, like
essentially all African Americans, at the time and the overwhelming majority,
since they had no interest in leaving the United States,
they had no interest in participating in a plan to
go to Liberia or somewhere else. That view had been
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a fantasy of white, anti slavery Americans of a certain
kind all the way since the beginning of the nineteenth century.
The idea, which was called colonization was the policy of
a group of people who formed the American Colonization Society,
a group of which James Monroe had been president and
of which Henry Clay, the Great wig compromiser and Lincoln's idol,
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had been another leader. At no time was this view realistic,
and at no time that it enjoys support from any
number of African Americans. But certainly by eighteen sixty two
the view was nothing more than a preposterous and frankly
offensive fantasy. The reason Lincoln was talking to this group
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of African Americans about colonization was not that he expected
them to listen to him. In fact, he wasn't really
talking to that group at all. Lincoln was talking to
white America, and he was trying to set up an
argument that even if emancipation should occur, there was no
need for white Americans to worry about any possibility of
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integration or living alongside African Americans towards whom he knew
white people harbored intense racial prejudice. He was, in short,
suggesting that it would be possible to emancipate without creating
a race problem in the United States by sending all
black people out of the country. The other thing that
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Lincoln told the assembled group of African American dignitaries was
if it's possible. Even more shocking, here's what he said,
but for your race among us, there could not be war,
although many men engaged on either side do not care
for you one way or the other. Nevertheless, I repeat,
without the institution of slavery and the colored race as
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a basis, the war could not have an existence. That
quotation is so astonishing that it may take a moment
to explain it. In essence, what Lincoln was telling the
black people in front of him was that the war
was their fault. Instead of blaming the war on southern slavery,
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or Northern hypocrisy, or the inability of the compromise between
North and South over slavery to subsist, Lincoln was saying
that black people were themselves the but for cause of
the war, and were therefore in some sense responsible for it.
If you think that I'm making that up, listen to
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what Frederick Douglas said when he heard the reports of
that conversation. Lincoln was showing all his inconsistencies, Douglas wrote,
his pride of race and blood, his contempt for negroes,
and his canting hypocrisy. How an honest man could creep
into such a character as that implied by this address,
we are not required to show. Douglas went on. He
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said that Lincoln was like a horse thief or a
highway robber who was blaming his crime on the horse
or the traveler's purse. No, mister President, Douglas said, it
is not the innocent horse that makes the horse thief,
not the traveler's purse that makes the highway robber. And
it is not the presence of the negro that causes
this foul and unnatural war, but the cruel and brutal
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cupidity of those who wish to possess horses, money, and
negroes by means of theft, robbery, and rebellion. What was
behind Lincoln's conversation with the African American delegation, however, was
not to make a reasonable point. He was instead again
trying to prepare the ground for the possibility of emancipation
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by convincing white Americans that he had no particular solicitude
or care for black people. He was trying to make
the argument that the reason to end slavery was to
end the war and to end the controversy and conflict
between Northern whites and Southern whites about the question of race.
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Did Lincoln mean everything he said? This is a question
that still engages historians, and one again that I discuss
in a great deal of detail in the book The
Broken Constitution. I would say that on the whole my
answer is yes. Listen to what Lincoln said in an
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open letter to Horace Greeley, the editor of the New
York Tribune, just a week after he had spoken to
the group of African Americans in his office. My paramount
object in this struggle, Lincoln said, is to save the Union,
and is not either to save or destroy slavery. His
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emphasis on those words, if I could save the Union
without freeing any slave, I would do it. And if
I could save it by freeing all the slaves, I
would do it. And if I could save it by
freeing some and leaving others alone, I would also do that.
What I do about slavery and the colored race, I
do because I believe it helps to save the Union.
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And what I forbear, I forbear because I do not
believe it would help to save the Union. There in
a nutshell was Lincoln's public position about emancipation. On his
way to September of eighteen sixty two, when he announced
a draft of the Emancipation Proclamation, Lincoln was saying, in
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words too simple to mistake, that he did not want
to base the decision to a man incipate at that
moment on the immorality of slavery, but rather on the
necessity of saving the Union. No doubt, Lincoln felt it
necessary to speak this way in order to convince white
Americans of the plausibility of emancipation, and also because he
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knew that he was breaking a constitutional compromise that had
always been based on slavery. Nevertheless, if Lincoln had wanted
to speak directly about the immorality of slavery itself as
part of his act of emancipation, he could have done so.
The Emancipation Proclamation evolved in the course of three versions
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of the document. The first was the one that Lincoln
suggested to his cabinet in the summer of eighteen sixty two.
The second was the preliminary declaration that Lincoln made public
in September. The third and final one was the formal
Emancipation Proclamation, into effect on January first of eighteen sixty three.
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In none of these did Lincoln expressly say that the
point of emancipation was to end a moral wrong. Indeed,
these documents were written in fairly legalistic tones. Karl Marx,
a contemporary of Lincoln's, as we sometimes forget, who watched
events in the United States with great interest, did consider
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the Emancipation Proclamation to be quote, the most important document
in American history since the establishment of the Union, tantamount
to the tearing up of the old American Constitution. Yet
at the same time, Marx derided the language of the
proclamation as devoid of morality. He said it had been
intentionally drafted to sound like, quote, an ordinary summons sent
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by one lawyer to another. That was true of the
body of the proclamation. The only place where Lincoln hinted, however,
in the emancipation Proclamation at some potential moral purpose was
in its final paragraph. There he wrote, and upon this act,
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sincerely believed to be an act of justice warranted by
the Constitution, upon military necessity, I invoke the considerate judgment
of mankind and the gracious favor of Almighty God. This
paragraph did include a repetition of Lincoln's insistence that his
act was justified by the Constitution because of the military
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necessity of doing so. In other words, that the reason
emancipation was permissible under the Constitution, despite it being a
breaking of the Constitution as it had always been understood before,
was that there was a military necessity to do so.
He needed to emancipate the slaves in order to win
the war. And yet if that were the only reason,
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there would be no significant basis for Lincoln to invoke
the judgment of mankind, much less the gracious favor of God.
By thinking of the judgment of mankind, Lincoln was referring
back to the Declaration of Independence, which had also appealed
to the opinions of mankind and referred to a creator
who endowed men with inalienable rights, including the right to liberty.
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Lincoln was suggesting to an international audience, not to the
US audience, that there was value in the freeing of slaves. Similarly,
by invoking God, Lincoln was hinting, but only hinting, that
in the eyes of the ultimate judge of morality, there
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was good reason to free enslaved African Americans. By emancipating
African American slaves, Lincoln fundamentally changed the possible outcomes of
the war, and in the process, he fundamentally transformed the
meaning of the Constitution. That was because by doing so,
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Lincoln blocked once and for all, any possibility of return
to a constitution based on compromise. The compromise constitution had
always been a compromise based on slavery. By announcing that
enslaved people in the South would not be returned to
their owners when the war was over, by announcing that
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there would not be slavery in the South when the
war was over, Lincoln was guaranteeing that there would not
be the possibility of future compromise, at least if he
were re elected president. He knew that he might lose
the presidential election in eighteen sixty four, and if that happened,
He realized a new president might reoffer some version of
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a compromise to the South, but as long as he
was president, he was insisting there would not be a
compromise by this Emancipation Act. Therefore, Lincoln broke any possibility
of return to the Constitution of seventeen eighty seven, as
it had been shored up and rebuilt by a series
of quasi constitutional compromises in the year before the war.
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He was taking slavery off the table. In so doing,
Lincoln was also opening up a new possibility, one we
are familiar with today, but that had not existed before.
That was the idea of the Constitution as a constitution
genuinely in keeping with morality, a moral constitution that could
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itself be considered a higher law. The Constitution had never
been considered a moral document in the years before the
Civil War because it entailed a compromise with slavery. Even
those who like Lincoln believed there was a moral duty
to follow the Constitution believed that that flowed from a
promise that had been made to follow it, not from
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the morality of the Constitution itself, which was a compromise
with immorality. But if the Constitution would no longer be
a compromise over slavery. Then it could be a moral document.
It could be a moral document based on the principle
of liberty for all, and by implication, also based on
the principle of equality. Liberty and equality were moral concepts.
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Compromise was a concept that was at best a moral
and at worst immoral to the extent it entailed an
agreement to preserve slavery. The Gettysburg Address is the archetypal
moment when Lincoln introduced this idea to the United States.
He gave it on November nineteenth, eighteen sixty three, and
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already in its first sentence, Lincoln spoke of a new
nation conceived in liberty and dedicated to the proposition that
all men are created equal. The nation was new because
the Constitution of seventeen eighty seven was gone. This new
nation was conceived in liberty, which could never be said
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of the Constitution of seventeen eighty seven because it entailed
a compromise over liberty by assuring the continuation of the
enslavement of African Americans and the core proposition that all
men are created equal, though it existed in the Declaration
of Independence, had not been morally present in the Constitution
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because it had explicitly excluded people of color. In the
course of the Gettysburg Address, Lincoln's introduction of the idea
of morality started to take on biblical overtones. You can
hear that in some of the language of the address
four score and seven years ago a formulation hinting at
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the Bible shall not perish from the earth more language
from the Bible. But Lincoln's religious description of the meaning
of the end of slavery came most famously in his
second inaugural address, which he gave on March fourth of
eighteen sixty five. In that famous address, Lincoln offered nothing
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less than a theology of slavery and what it meant
in America. According to that theology, slavery was an offense
against God, an original sin, and that sin had been
purged or atoned only through the violence and bloodshed of
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the Civil War. He said, if we shall suppose that
American slavery is one of those offenses which, in the
providence of God must needs come, but which having continued
through his appointed time, he now wills to remove, and
that he gives to both north and South. This terrible war,
as the woe due to those by whom the offense came,
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shall we scern therein any departure from those divine attributes
which the believers in a living God always ascribed to him.
Lincoln was saying that the war had been inevitable, inevitable
because of the slavery compromise, which itself was a sin. Thus,
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he said, the war might continue until all the wealth
piled by the bondman's two hundred and fifty years of
unrequited toil shall be sunk, and until every drop of
blood drawn with the lash shall be paid by another
drawn with the sword. The blood of slavery would be
repaid by the blood of the Northern and Southern dead.
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Through this atonement, an atonement that would have been familiar
to Americans of the time as the model of Christ's
sacrifice of his own blood to atone for original sin,
the United States could be healed. The result would be
a new Constitution that stood in relationship to the Old Constitution,
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the way the New Testament stood in relationship to the Old.
Lots of scholars have talked about the difficulty that Lincoln
faced in his personal life. The death of his son
and as well the pain of seeing so many human
deaths on both sides of the war. But the truth
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is that the most obvious explanation for Lincoln's turn to
religious language at the end of the war has to
do with his turn to the idea that the Constitution
could be remade into something newly moral. For nineteenth century Americans,
the fundamental language of morality was the language of religion. Thus,
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by the emancipation of slaves, Lincoln changed the meaning of
the war itself from being a war for union to
being a war to end slavery. No longer would union
be grounded and compromised. Instead, union would be grounded in
a coercive military solution that ended slavery and assumed a
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constitution that would ultimately be based on equality. Lincoln lived
to see the ratification of the Thirteenth Amendment, which ended slavery.
He did not live to see the ratification of the
Fourteenth Amendment, with its guarantee of equal protection, nor the
fifteenth with its enfranchisement of African Americans. But that did
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not matter from the standpoint of the transformative effect that
Lincoln's actions had had on the Constitution. Once slavery was ended,
which Lincoln had done even without a constitutional amendment, at
least with respect to the South. He had fundamentally transformed
the constitutional order into something new. He had refounded America
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on new principles, moral prin principles of freedom, and principles
of equality. His historical contribution would be permanent. Before I
end this episode, though, I want to point out that
although nothing could be neater than to end the story
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of Lincoln and the Broken Constitution with its transformation into
a new moral constitution via the thirteenth, fourteenth, and fifteenth Amendments,
the sad truth is that the planned effort to remake
the Constitution into something moral did not ultimately go as
Lincoln had hoped, And indeed, some of the reason for
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that may simply have to do with the fact that
neither Lincoln nor anyone else had a detailed vision of
how a constitution that was based on moral principles of
equality and freedom could actually work in practice. As you
may recall from Episode one, General Winfield's Scott had told
Lincoln before the war began that if the North did
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manage to conquer the South, it would have to rule
the South the way an imperial power ruled unruly colonies.
It would have to have an army of occupation, and
it would have to force its own control and power
onto the South. When field Scott thought that would be
very difficult or impossible to do, as it happened, that
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is exactly what the North had to do when the
war ended. Reconstruction is the name for the military occupation
and the effort of social transformation that was initially undertaken
by the North, and that was then co participated in
by freed African Americans in the South who nobly and
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by their own efforts, undertook to enfranchise themselves, to participate
in politics and to remake the society in which they lived.
Andrew Johnson, Lincoln's vice president, was very skeptical of Reconstruction
from the start and tried hard not to implement its provisions. That,
in fact, was one of the reasons that he was
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ultimately impeached, though not convicted by the Senate. Johnson, however,
was replaced ultimately by Ulysses S. Grant, and Grant did
much more than Johnson had done to work with the
Republican Congress to impose Reconstruction on the South. The South, however,
and by that I mean, the White South resisted with
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everything that it had. It fought a military insurgency characterized
by paramilitary guerrilla groups like the Ku Klux Klan. White
Southerners fought hard to resist the idea of African American
equality and enfranchisement in the social sphere, in the economic sphere,
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and in the political sphere, and ultimately, over the course
of the first half of the eighteen seventies, white Northerners
lost the political moment to keep reconstruction going. The analogies
to American wars in Afghanistan and Iraq are actually strong.
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The United States may imagine that it can transform a
society entirely in the course of a military occupation, but
when it turns out to be difficult, expensive, and time consuming,
and when it turns out that many local people resist transformation,
eventually the United States is capable of running out of
steam on some level. That is the best account of
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how Reconstruction ultimately failed. It wasn't that Southern African Americans
gave up their efforts to the contrary. They never stopped.
It was that white Northerners lost the political will and
the incentive to continue to try to impose social transformation,
economic transformation, and political transformation on white Southerners. The result
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was the tragedy of what is sometimes called the Compromise
of eighteen seventy six or the Great Betrayal. This was
a process that emerged from the disputed eighteen seventy six
constitutional election, which produced a special commission and a set
of agreements that effectively embraced the reality of the collapse
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of Reconstruction. To oversimplify significantly, the Republican Party, speaking on
behalf of northern whites, reached a compromise with the Democratic Party,
which incorporated southern whites, to end Reconstruction and to allow
the re emergence of a system of white domination in
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the South, a system based on segregation and disenfranchisement. To
get there, the Supreme Court had to bless and validate
laws that effectively repudiated the Fourteenth and Fifteenth Amendments. Segregation
the principle of separate but equal will violated the Fourteenth Amendment,
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but the Supreme Court pretended otherwise in the tragically awful
case of Plessy v. Ferguson. Similarly, laws designed to block
African Americans from voting were systematically upheld by the Supreme Court.
Lincoln's promise of a moral Constitution was betrayed, because although
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the Moral Constitution remained on paper, it was effectively a
dead letter until the Civil Rights movement and Brown against
the Board of Education. What happened after the Supreme Court
repudiated the idea of separate but equal in the Brown versus.
The Board decision in nineteen fifty four was the beginning
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of a process of constitutional redemption. The redemption here was
not redemption of the original Constitution of seventeen eighty seven,
but of Lincoln's Moral Constitution, the constitution embodied in their
reconstruction amendments. The Supreme Court itself played a role an
important role by saying that separate could never be equal,
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but the primary role was played by the Civil rights movement,
by African Americans, who, in the decade following Brown versus.
Board of Education, engaged in civil disobedience, in sit ins,
in nonviolent resistance, and in the whole series of dramatic
and heroic undertakings that ultimately led Congress to adopt the
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Civil Rights Act of nineteen sixty four and the Voting
Rights Act of nineteen sixty five. In this process, Martin
Luther King Junior emerged as in a sense, the second Lincoln,
someone who stood from the moral Constitution, not from the
standpoint in this case of a government itself, but from
the standpoint of the people, and in particular of African Americans,
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who had been oppressed. The institution of morality and equality
was therefore redeemed not by the conferral of a decision
from above, like Lincoln the dictator, but rather by the
actions of the people who were entitled to the very
rights that they were guaranteed under that constitutional order. It
(37:28):
was no coincidence that the iconic moment of Martin Luther
King's career took place at the March on Washington. Standing
in front of the Lincoln memorial. King was becoming a
second Lincoln, and because ultimately King was assassinated just as
(37:48):
Lincoln had been, the two men became linked as martyrs
of the new and moral Constitution. King's explicitly religious identity
as a minister played an important role in solidifying and
expanding Lincoln's theology of the Civil War. The blood of
(38:10):
the Civil War had atoned for original sin, but it
was the efforts of African Americans and King's own sacrifice
that redeemed Lincoln's Constitution from the betrayal it had undergone
in the years after the abandonment of reconstruction. Today, of course,
we know that that redeemed Constitution, with its moral principles
(38:35):
of equality and liberty, is not perfectly achieved. Everyone on
the American political spectrum today embraces in principle Lincoln's Constitution.
Everyone therefore should recognize today that we do not have
the Constitution of seventeen eighty seven, but we do have
the constitution that Abraham Lincoln brought into existence with emancipation
(38:59):
on January first, eighteen sixty three. At the same time,
we need to recognize that a written constitution embedding the
principles of a quality and liberty does not on its
own bring those moral principles into existence. We still have
persistent inequality in the United States, including inequality before the
(39:20):
law of the kind that the moral constitution prohibits. The
truth is that a moral constitution, like all constitutions, is
not an end state. It's a promise of an ongoing effort.
Through our moral constitution, we define our national project, but
(39:40):
we can never fully achieve it. Lincoln's ultimate legacy, then
is not the accomplishment of a genuinely moral constitution. It
is rather his act of breaking the compromise constitution and
the hope and the promise of a moral constitution that
will always be in the process of being redeemed. If
(40:04):
you enjoyed this episode of The Broken Constitution podcast, I
can tell you with a great deal of certainty that
you're also going to enjoy the book itself, The Broken Constitution, Lincoln,
Slavery and the Refounding of America, will be out now.
Please enjoy reading it, and if you have thoughts or ideas,
(40:28):
I hope you will write to me about what you think.
The point of this book is to create a conversation,
and you, the listener of this podcast, are one of
the people from whom I wish to hear. The Broken
Constitution was produced by Nathan Sims and Quick and Dirty Tips,
a proud part of McMillan Publishers Home far Oar Straus
(40:51):
and Drew, who are publishing my book
Pushkin. Welcome to episode three of my podcast on the
Broken Constitution, Lincoln, Slavery, and the Refounding of America. In
episode one, I talked about how the Constitution of seventeen
eighty seven and the way that it was a compromise
(00:37):
between slave states and free states in order to preserve
and enable the expansion of the Union. In episode two,
I brought us into the breaking of that Constitution by
the Confederacy and Abraham Lincoln's corresponding breaking of the Constitution
as it was then understood, both by going to war
(00:57):
to coerce the Southern States back into the Union, and
then by suspending Habeas corpus unilaterally, even though that was
a power reserve to Congress, and through that becoming a
kind of a dictator, one who suspended the freedom of
expression in the United States through the duration of the war,
arresting ultimately many thousands of people and shutting down hundreds
(01:20):
of newspapers. In today's episode, I want to turn to
the most memorable, significant, and consequential breaking of the Constitution
that Abraham Lincoln achieved, the one that had the effect
of transforming not only the meaning of the Civil War,
but transforming the Constitution itself in the most fundamental way,
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so much so that the Constitution of today is no
longer the Constitution of seventeen eighty seven, but something new
and different, the Constitution of Abraham Lincoln, and then ultimately
the Constitution of the Reconstruction Amendments, the thirteenth, fourteenth, and
fifteenth Amendments. To do that, we have to begin with
(02:05):
a recognition of a fact that we've effectively supprest, and
that is that when the Civil War began, Abraham Lincoln
remained exactly as committed to the compromised Constitution and therefore
to the preservation of slavery as he had been through
the entirety of his political career up to that point.
(02:27):
The evidence that indicates the depth of this comes from
Abraham Lincoln's first inaugural address. Now you may be thinking
to yourself, well, wait a minute, what was Lincoln's first
inaugural address. His second inaugural address, which i'll talk about
a bit later in this podcast, is part of the
canon of American political and constitutional thought. When you visit
(02:52):
the Lincoln Memorial, it's right up there on one of
the walls, across from the Gettysburg Address. The other one
of Lincoln's most famous speeches, But the first Inaugural Address
is all but forgotten, and the reason for that is
that it began in its first full power graph by
quoting a statement that Lincoln had made in debating Stephen
(03:13):
Douglas when he ran for the Senate in eighteen fifty eight,
and in it Lincoln said, quote, I have no purpose,
directly or indirectly to interfere with the institution of slavery
in the states where it exists. I believe I have
no lawful right to do so, and I have no
inclination to do so. The reason for that was straightforward,
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Southern secession needed to be reversed. Lincoln saw his goal
as recreating the Union. The Union had always existed on
the basis of a compromise over slavery, and he had
no idea of any possible mode of recreating the Union
without recreating the compromise over slavery. His promise in the
(03:58):
Inaugural Address to respect the institution of slavery was therefore
a crucial part of his vision of how to restore
the Union. This view continued through the first months of
Lincoln's presidency. At the end of August of eighteen sixty one,
John C. Fremont, who had been the eighteen fifty six
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Republican presidential candidate and whom Lincoln had made a general
in Missouri, announced that he was freeing the slaves of
all rebels found in his territory. This, in short, was
pretty fundamentally similar to what would be Lincoln's active emancipation.
More than a year later, Lincoln wrote to Fremont and
(04:40):
told him, no, you cannot do this. I am requesting
that you retract your emancipation order. Fremont said, I'm not
going to do that. If you want the order reversed,
you have to do it. So Lincoln fired Fremont and
reversed the order himself. In a letter that Lincoln wrote
(05:01):
to a friend just a few days later on September
twenty one, eighteen sixty seven, he stood behind his decision
regarding Fremont's emancipation order. The proclamation, he said, is and
I quote, simply dictatorship. It assumes that the general may
do anything he pleases, confiscate the lands, and free the
(05:21):
slaves of loyal people as well as disloyal ones. In
other words, Lincoln believed that for a general to use
his war powers to free slaves was an act of dictatorship,
and he was not using that term in the positive
sense of the word. For Lincoln, dictatorship was wrong, and
the Constitution did not authorize him or therefore the General's
(05:46):
working for him to free slaves as a matter of
military necessity. It took Lincoln more than a year for
his views to evolve and change. In the book The
Broken Constitution, I take the reader day by day, just
about sometimes even minute by minute, through the process that
(06:09):
Lincoln went through to shift his views from the view
that it would be an active dictatorship to free slaves
to the view that perhaps he ought to do so himself.
To summarize it here, I would say that there were
two major forces that push Lincoln in this direction. The
first was a circumstantial one. He gradually realized that it
(06:32):
would be difficult or impossible for him to win the
war by creating a sufficient incentive for the Southern States
to rejoin the Union voluntarily. As long as Lincoln thought
that the Southern States might voluntarily rejoin, it was necessary
to maintain the possibility of compromise, and that compromise, in
(06:54):
turn required preserving slavery. But if it turned out that
the Southern States were not going to compromise, We're not
going to return voluntarily, then what followed from that was
that it was at least possible to impose an outcome
to the war on them. If that solution were therefore
to be imposed by military force, Lincoln had the possibility
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at least of changing the situation with respect to the
compromised Constitution as it existed before the war. The new
constitution that would then have to emerge would no longer
be based on a compromise. It would instead be based
on a principle, and indeed on a moral principle, namely
the moral principle of the end of slavery and the
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equality of African Americans. Lincoln did not deceive himself into
thinking the Southern States would ever agree to this. This
was an outcome they would have to be imposed by
military force. The second element that contributed most fundamentally to
Lincoln changing his views was the depth of his embrace
(08:00):
of the idea that, through military necessity, he was authorized
by the Constitution to do whatever it took to win
the war. Here, his suspension of habeas corpus and his
suspension of the free press were actually the groundwork for
Lincoln's realization that if he could do that, he could
(08:24):
do anything, and anything included breaking the Constitution as he
had always understood it, and that included emancipating slaves. Remember that,
all the way back early in his career, in eighteen
thirty eight, in his Lyceum address which I mentioned in
Episode one, Lincoln had said that what made a dictator
(08:45):
a caesar or a Napoleon was the act of emancipating
slaves or enslaving freemen. Gradually he had come to the
view that that act, which was he said in eighteen
thirty eight, a fundamental violation of the principles of the Constitution,
was permissible to him in wartime, because in wartime, and
(09:08):
under the circumstance senses of the broken Constitution, he could
then further break the Constitution in order to win the war.
Lincoln first introduced this idea to his colleagues in the
cabinet on July twenty second of eighteen sixty two, a
year and several months after he had assumed the presidency.
(09:32):
At the time, he still hoped that there would be
some way to introduce compensated emancipation money to be paid
to those people who were not disloyal and still had
their slaves taken. When he introduced the idea to his cabinet,
the cabinet was so shocked that it essentially reacted by
telling him that emancipation would be a terrible mistake. From this,
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Lincoln realized that he needed to do more to introduce
the idea of emancipation, not only to his cabinet, but
to the country, which he knew would hold similar views
to those of the cabinet. He spent the rest of
the summer and the fall of eighteen sixty two gradually
introducing ideas associated with emancipation into the public eye. The
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way he did that, seen in our terms, is not
necessarily very appealing. Here, Lincoln the politician was not acting
as Lincoln the moralist. An exemplary and dramatic moment in
Lincoln's efforts to acclimate the country to the possibility of
emancipation came in August of eighteen sixty two, when Lincoln
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held a meeting with a five member delegation of African
Americans in the White House. The men he invited were
part of the city's educated black elite. One Edward Thomas,
the chairman of the delegation, was a member of one
of the city's black debating societies, a collector of fine
(11:04):
art and rare coins, and the proud owner of a
library of six hundred books, an enormous library for the time.
The others had similar elite status. Lincoln brought them into
the White House, and instead of asking them what their
views were about the possibility of emancipation, or how he
should do things going forward, or really listening to them
(11:26):
at all, Lincoln talked at them. And what he told
them was nothing short of astonishing to our ears. What
Lincoln told them had two parts. The first was that
the long term solution to the problem of slavery was
not merely to free black people, but for black people
(11:47):
to voluntary leave the United States and be resettled somewhere else,
either in Africa or in Central America, in circumstances where
they would be far from white people and where the
hatred that subsisted between the two races, according to Lincoln,
would be resolved by effectively a kind of divorce. The
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delegation of African Americans listened with a stony silence, like
essentially all African Americans, at the time and the overwhelming majority,
since they had no interest in leaving the United States,
they had no interest in participating in a plan to
go to Liberia or somewhere else. That view had been
(12:32):
a fantasy of white, anti slavery Americans of a certain
kind all the way since the beginning of the nineteenth century.
The idea, which was called colonization was the policy of
a group of people who formed the American Colonization Society,
a group of which James Monroe had been president and
of which Henry Clay, the Great wig compromiser and Lincoln's idol,
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had been another leader. At no time was this view realistic,
and at no time that it enjoys support from any
number of African Americans. But certainly by eighteen sixty two
the view was nothing more than a preposterous and frankly
offensive fantasy. The reason Lincoln was talking to this group
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of African Americans about colonization was not that he expected
them to listen to him. In fact, he wasn't really
talking to that group at all. Lincoln was talking to
white America, and he was trying to set up an
argument that even if emancipation should occur, there was no
need for white Americans to worry about any possibility of
(13:39):
integration or living alongside African Americans towards whom he knew
white people harbored intense racial prejudice. He was, in short,
suggesting that it would be possible to emancipate without creating
a race problem in the United States by sending all
black people out of the country. The other thing that
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Lincoln told the assembled group of African American dignitaries was
if it's possible. Even more shocking, here's what he said,
but for your race among us, there could not be war,
although many men engaged on either side do not care
for you one way or the other. Nevertheless, I repeat,
without the institution of slavery and the colored race as
(14:21):
a basis, the war could not have an existence. That
quotation is so astonishing that it may take a moment
to explain it. In essence, what Lincoln was telling the
black people in front of him was that the war
was their fault. Instead of blaming the war on southern slavery,
(14:42):
or Northern hypocrisy, or the inability of the compromise between
North and South over slavery to subsist, Lincoln was saying
that black people were themselves the but for cause of
the war, and were therefore in some sense responsible for it.
If you think that I'm making that up, listen to
(15:02):
what Frederick Douglas said when he heard the reports of
that conversation. Lincoln was showing all his inconsistencies, Douglas wrote,
his pride of race and blood, his contempt for negroes,
and his canting hypocrisy. How an honest man could creep
into such a character as that implied by this address,
we are not required to show. Douglas went on. He
(15:25):
said that Lincoln was like a horse thief or a
highway robber who was blaming his crime on the horse
or the traveler's purse. No, mister President, Douglas said, it
is not the innocent horse that makes the horse thief,
not the traveler's purse that makes the highway robber. And
it is not the presence of the negro that causes
this foul and unnatural war, but the cruel and brutal
(15:49):
cupidity of those who wish to possess horses, money, and
negroes by means of theft, robbery, and rebellion. What was
behind Lincoln's conversation with the African American delegation, however, was
not to make a reasonable point. He was instead again
trying to prepare the ground for the possibility of emancipation
(16:12):
by convincing white Americans that he had no particular solicitude
or care for black people. He was trying to make
the argument that the reason to end slavery was to
end the war and to end the controversy and conflict
between Northern whites and Southern whites about the question of race.
(16:37):
Did Lincoln mean everything he said? This is a question
that still engages historians, and one again that I discuss
in a great deal of detail in the book The
Broken Constitution. I would say that on the whole my
answer is yes. Listen to what Lincoln said in an
(16:58):
open letter to Horace Greeley, the editor of the New
York Tribune, just a week after he had spoken to
the group of African Americans in his office. My paramount
object in this struggle, Lincoln said, is to save the Union,
and is not either to save or destroy slavery. His
(17:19):
emphasis on those words, if I could save the Union
without freeing any slave, I would do it. And if
I could save it by freeing all the slaves, I
would do it. And if I could save it by
freeing some and leaving others alone, I would also do that.
What I do about slavery and the colored race, I
do because I believe it helps to save the Union.
(17:41):
And what I forbear, I forbear because I do not
believe it would help to save the Union. There in
a nutshell was Lincoln's public position about emancipation. On his
way to September of eighteen sixty two, when he announced
a draft of the Emancipation Proclamation, Lincoln was saying, in
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words too simple to mistake, that he did not want
to base the decision to a man incipate at that
moment on the immorality of slavery, but rather on the
necessity of saving the Union. No doubt, Lincoln felt it
necessary to speak this way in order to convince white
Americans of the plausibility of emancipation, and also because he
(18:28):
knew that he was breaking a constitutional compromise that had
always been based on slavery. Nevertheless, if Lincoln had wanted
to speak directly about the immorality of slavery itself as
part of his act of emancipation, he could have done so.
The Emancipation Proclamation evolved in the course of three versions
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of the document. The first was the one that Lincoln
suggested to his cabinet in the summer of eighteen sixty two.
The second was the preliminary declaration that Lincoln made public
in September. The third and final one was the formal
Emancipation Proclamation, into effect on January first of eighteen sixty three.
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In none of these did Lincoln expressly say that the
point of emancipation was to end a moral wrong. Indeed,
these documents were written in fairly legalistic tones. Karl Marx,
a contemporary of Lincoln's, as we sometimes forget, who watched
events in the United States with great interest, did consider
(19:37):
the Emancipation Proclamation to be quote, the most important document
in American history since the establishment of the Union, tantamount
to the tearing up of the old American Constitution. Yet
at the same time, Marx derided the language of the
proclamation as devoid of morality. He said it had been
intentionally drafted to sound like, quote, an ordinary summons sent
(20:01):
by one lawyer to another. That was true of the
body of the proclamation. The only place where Lincoln hinted, however,
in the emancipation Proclamation at some potential moral purpose was
in its final paragraph. There he wrote, and upon this act,
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sincerely believed to be an act of justice warranted by
the Constitution, upon military necessity, I invoke the considerate judgment
of mankind and the gracious favor of Almighty God. This
paragraph did include a repetition of Lincoln's insistence that his
act was justified by the Constitution because of the military
(20:45):
necessity of doing so. In other words, that the reason
emancipation was permissible under the Constitution, despite it being a
breaking of the Constitution as it had always been understood before,
was that there was a military necessity to do so.
He needed to emancipate the slaves in order to win
the war. And yet if that were the only reason,
(21:08):
there would be no significant basis for Lincoln to invoke
the judgment of mankind, much less the gracious favor of God.
By thinking of the judgment of mankind, Lincoln was referring
back to the Declaration of Independence, which had also appealed
to the opinions of mankind and referred to a creator
who endowed men with inalienable rights, including the right to liberty.
(21:33):
Lincoln was suggesting to an international audience, not to the
US audience, that there was value in the freeing of slaves. Similarly,
by invoking God, Lincoln was hinting, but only hinting, that
in the eyes of the ultimate judge of morality, there
(21:53):
was good reason to free enslaved African Americans. By emancipating
African American slaves, Lincoln fundamentally changed the possible outcomes of
the war, and in the process, he fundamentally transformed the
meaning of the Constitution. That was because by doing so,
(22:17):
Lincoln blocked once and for all, any possibility of return
to a constitution based on compromise. The compromise constitution had
always been a compromise based on slavery. By announcing that
enslaved people in the South would not be returned to
their owners when the war was over, by announcing that
(22:38):
there would not be slavery in the South when the
war was over, Lincoln was guaranteeing that there would not
be the possibility of future compromise, at least if he
were re elected president. He knew that he might lose
the presidential election in eighteen sixty four, and if that happened,
He realized a new president might reoffer some version of
(23:00):
a compromise to the South, but as long as he
was president, he was insisting there would not be a
compromise by this Emancipation Act. Therefore, Lincoln broke any possibility
of return to the Constitution of seventeen eighty seven, as
it had been shored up and rebuilt by a series
of quasi constitutional compromises in the year before the war.
(23:24):
He was taking slavery off the table. In so doing,
Lincoln was also opening up a new possibility, one we
are familiar with today, but that had not existed before.
That was the idea of the Constitution as a constitution
genuinely in keeping with morality, a moral constitution that could
(23:47):
itself be considered a higher law. The Constitution had never
been considered a moral document in the years before the
Civil War because it entailed a compromise with slavery. Even
those who like Lincoln believed there was a moral duty
to follow the Constitution believed that that flowed from a
promise that had been made to follow it, not from
(24:10):
the morality of the Constitution itself, which was a compromise
with immorality. But if the Constitution would no longer be
a compromise over slavery. Then it could be a moral document.
It could be a moral document based on the principle
of liberty for all, and by implication, also based on
the principle of equality. Liberty and equality were moral concepts.
(24:35):
Compromise was a concept that was at best a moral
and at worst immoral to the extent it entailed an
agreement to preserve slavery. The Gettysburg Address is the archetypal
moment when Lincoln introduced this idea to the United States.
He gave it on November nineteenth, eighteen sixty three, and
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already in its first sentence, Lincoln spoke of a new
nation conceived in liberty and dedicated to the proposition that
all men are created equal. The nation was new because
the Constitution of seventeen eighty seven was gone. This new
nation was conceived in liberty, which could never be said
(25:19):
of the Constitution of seventeen eighty seven because it entailed
a compromise over liberty by assuring the continuation of the
enslavement of African Americans and the core proposition that all
men are created equal, though it existed in the Declaration
of Independence, had not been morally present in the Constitution
(25:40):
because it had explicitly excluded people of color. In the
course of the Gettysburg Address, Lincoln's introduction of the idea
of morality started to take on biblical overtones. You can
hear that in some of the language of the address
four score and seven years ago a formulation hinting at
(26:01):
the Bible shall not perish from the earth more language
from the Bible. But Lincoln's religious description of the meaning
of the end of slavery came most famously in his
second inaugural address, which he gave on March fourth of
eighteen sixty five. In that famous address, Lincoln offered nothing
(26:24):
less than a theology of slavery and what it meant
in America. According to that theology, slavery was an offense
against God, an original sin, and that sin had been
purged or atoned only through the violence and bloodshed of
(26:46):
the Civil War. He said, if we shall suppose that
American slavery is one of those offenses which, in the
providence of God must needs come, but which having continued
through his appointed time, he now wills to remove, and
that he gives to both north and South. This terrible war,
as the woe due to those by whom the offense came,
(27:08):
shall we scern therein any departure from those divine attributes
which the believers in a living God always ascribed to him.
Lincoln was saying that the war had been inevitable, inevitable
because of the slavery compromise, which itself was a sin. Thus,
(27:29):
he said, the war might continue until all the wealth
piled by the bondman's two hundred and fifty years of
unrequited toil shall be sunk, and until every drop of
blood drawn with the lash shall be paid by another
drawn with the sword. The blood of slavery would be
repaid by the blood of the Northern and Southern dead.
(27:53):
Through this atonement, an atonement that would have been familiar
to Americans of the time as the model of Christ's
sacrifice of his own blood to atone for original sin,
the United States could be healed. The result would be
a new Constitution that stood in relationship to the Old Constitution,
(28:14):
the way the New Testament stood in relationship to the Old.
Lots of scholars have talked about the difficulty that Lincoln
faced in his personal life. The death of his son
and as well the pain of seeing so many human
deaths on both sides of the war. But the truth
(28:38):
is that the most obvious explanation for Lincoln's turn to
religious language at the end of the war has to
do with his turn to the idea that the Constitution
could be remade into something newly moral. For nineteenth century Americans,
the fundamental language of morality was the language of religion. Thus,
(28:59):
by the emancipation of slaves, Lincoln changed the meaning of
the war itself from being a war for union to
being a war to end slavery. No longer would union
be grounded and compromised. Instead, union would be grounded in
a coercive military solution that ended slavery and assumed a
(29:23):
constitution that would ultimately be based on equality. Lincoln lived
to see the ratification of the Thirteenth Amendment, which ended slavery.
He did not live to see the ratification of the
Fourteenth Amendment, with its guarantee of equal protection, nor the
fifteenth with its enfranchisement of African Americans. But that did
(29:44):
not matter from the standpoint of the transformative effect that
Lincoln's actions had had on the Constitution. Once slavery was ended,
which Lincoln had done even without a constitutional amendment, at
least with respect to the South. He had fundamentally transformed
the constitutional order into something new. He had refounded America
(30:06):
on new principles, moral prin principles of freedom, and principles
of equality. His historical contribution would be permanent. Before I
end this episode, though, I want to point out that
although nothing could be neater than to end the story
(30:27):
of Lincoln and the Broken Constitution with its transformation into
a new moral constitution via the thirteenth, fourteenth, and fifteenth Amendments,
the sad truth is that the planned effort to remake
the Constitution into something moral did not ultimately go as
Lincoln had hoped, And indeed, some of the reason for
(30:50):
that may simply have to do with the fact that
neither Lincoln nor anyone else had a detailed vision of
how a constitution that was based on moral principles of
equality and freedom could actually work in practice. As you
may recall from Episode one, General Winfield's Scott had told
Lincoln before the war began that if the North did
(31:13):
manage to conquer the South, it would have to rule
the South the way an imperial power ruled unruly colonies.
It would have to have an army of occupation, and
it would have to force its own control and power
onto the South. When field Scott thought that would be
very difficult or impossible to do, as it happened, that
(31:34):
is exactly what the North had to do when the
war ended. Reconstruction is the name for the military occupation
and the effort of social transformation that was initially undertaken
by the North, and that was then co participated in
by freed African Americans in the South who nobly and
(31:55):
by their own efforts, undertook to enfranchise themselves, to participate
in politics and to remake the society in which they lived.
Andrew Johnson, Lincoln's vice president, was very skeptical of Reconstruction
from the start and tried hard not to implement its provisions. That,
in fact, was one of the reasons that he was
(32:16):
ultimately impeached, though not convicted by the Senate. Johnson, however,
was replaced ultimately by Ulysses S. Grant, and Grant did
much more than Johnson had done to work with the
Republican Congress to impose Reconstruction on the South. The South, however,
and by that I mean, the White South resisted with
(32:37):
everything that it had. It fought a military insurgency characterized
by paramilitary guerrilla groups like the Ku Klux Klan. White
Southerners fought hard to resist the idea of African American
equality and enfranchisement in the social sphere, in the economic sphere,
(32:58):
and in the political sphere, and ultimately, over the course
of the first half of the eighteen seventies, white Northerners
lost the political moment to keep reconstruction going. The analogies
to American wars in Afghanistan and Iraq are actually strong.
(33:19):
The United States may imagine that it can transform a
society entirely in the course of a military occupation, but
when it turns out to be difficult, expensive, and time consuming,
and when it turns out that many local people resist transformation,
eventually the United States is capable of running out of
steam on some level. That is the best account of
(33:42):
how Reconstruction ultimately failed. It wasn't that Southern African Americans
gave up their efforts to the contrary. They never stopped.
It was that white Northerners lost the political will and
the incentive to continue to try to impose social transformation,
economic transformation, and political transformation on white Southerners. The result
(34:06):
was the tragedy of what is sometimes called the Compromise
of eighteen seventy six or the Great Betrayal. This was
a process that emerged from the disputed eighteen seventy six
constitutional election, which produced a special commission and a set
of agreements that effectively embraced the reality of the collapse
(34:28):
of Reconstruction. To oversimplify significantly, the Republican Party, speaking on
behalf of northern whites, reached a compromise with the Democratic Party,
which incorporated southern whites, to end Reconstruction and to allow
the re emergence of a system of white domination in
(34:48):
the South, a system based on segregation and disenfranchisement. To
get there, the Supreme Court had to bless and validate
laws that effectively repudiated the Fourteenth and Fifteenth Amendments. Segregation
the principle of separate but equal will violated the Fourteenth Amendment,
(35:11):
but the Supreme Court pretended otherwise in the tragically awful
case of Plessy v. Ferguson. Similarly, laws designed to block
African Americans from voting were systematically upheld by the Supreme Court.
Lincoln's promise of a moral Constitution was betrayed, because although
(35:33):
the Moral Constitution remained on paper, it was effectively a
dead letter until the Civil Rights movement and Brown against
the Board of Education. What happened after the Supreme Court
repudiated the idea of separate but equal in the Brown versus.
The Board decision in nineteen fifty four was the beginning
(35:55):
of a process of constitutional redemption. The redemption here was
not redemption of the original Constitution of seventeen eighty seven,
but of Lincoln's Moral Constitution, the constitution embodied in their
reconstruction amendments. The Supreme Court itself played a role an
important role by saying that separate could never be equal,
(36:18):
but the primary role was played by the Civil rights movement,
by African Americans, who, in the decade following Brown versus.
Board of Education, engaged in civil disobedience, in sit ins,
in nonviolent resistance, and in the whole series of dramatic
and heroic undertakings that ultimately led Congress to adopt the
(36:42):
Civil Rights Act of nineteen sixty four and the Voting
Rights Act of nineteen sixty five. In this process, Martin
Luther King Junior emerged as in a sense, the second Lincoln,
someone who stood from the moral Constitution, not from the
standpoint in this case of a government itself, but from
the standpoint of the people, and in particular of African Americans,
(37:06):
who had been oppressed. The institution of morality and equality
was therefore redeemed not by the conferral of a decision
from above, like Lincoln the dictator, but rather by the
actions of the people who were entitled to the very
rights that they were guaranteed under that constitutional order. It
(37:28):
was no coincidence that the iconic moment of Martin Luther
King's career took place at the March on Washington. Standing
in front of the Lincoln memorial. King was becoming a
second Lincoln, and because ultimately King was assassinated just as
(37:48):
Lincoln had been, the two men became linked as martyrs
of the new and moral Constitution. King's explicitly religious identity
as a minister played an important role in solidifying and
expanding Lincoln's theology of the Civil War. The blood of
(38:10):
the Civil War had atoned for original sin, but it
was the efforts of African Americans and King's own sacrifice
that redeemed Lincoln's Constitution from the betrayal it had undergone
in the years after the abandonment of reconstruction. Today, of course,
we know that that redeemed Constitution, with its moral principles
(38:35):
of equality and liberty, is not perfectly achieved. Everyone on
the American political spectrum today embraces in principle Lincoln's Constitution.
Everyone therefore should recognize today that we do not have
the Constitution of seventeen eighty seven, but we do have
the constitution that Abraham Lincoln brought into existence with emancipation
(38:59):
on January first, eighteen sixty three. At the same time,
we need to recognize that a written constitution embedding the
principles of a quality and liberty does not on its
own bring those moral principles into existence. We still have
persistent inequality in the United States, including inequality before the
(39:20):
law of the kind that the moral constitution prohibits. The
truth is that a moral constitution, like all constitutions, is
not an end state. It's a promise of an ongoing effort.
Through our moral constitution, we define our national project, but
(39:40):
we can never fully achieve it. Lincoln's ultimate legacy, then
is not the accomplishment of a genuinely moral constitution. It
is rather his act of breaking the compromise constitution and
the hope and the promise of a moral constitution that
will always be in the process of being redeemed. If
(40:04):
you enjoyed this episode of The Broken Constitution podcast, I
can tell you with a great deal of certainty that
you're also going to enjoy the book itself, The Broken Constitution, Lincoln,
Slavery and the Refounding of America, will be out now.
Please enjoy reading it, and if you have thoughts or ideas,
(40:28):
I hope you will write to me about what you think.
The point of this book is to create a conversation,
and you, the listener of this podcast, are one of
the people from whom I wish to hear. The Broken
Constitution was produced by Nathan Sims and Quick and Dirty Tips,
a proud part of McMillan Publishers Home far Oar Straus
(40:51):
and Drew, who are publishing my book
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