Noah Feldman, Felix Frankfurter Professor of Law at Harvard Law School, is a frequent public commenter on the state of constitutional law and the Supreme Court. Over the last few years he’s been in a rough patch. He’s written about how Trump’s conservative appointees deserve to be on the Supreme Court. He seems to have hoped these justices to behave like Justice Anthony Kennedy. He was sure the Supreme Court would not let conservative states get away with cynical end runs around binding precedent. Even as all evidence was pointing towards the conservative justice’s eagerness to overturn longstanding precedent he said we just couldn’t be sure. Events are outpacing him.
You might expect this experience to chasten his confidence in his abilities. You would be mistaken. Feldman isn’t content to merely bungle reading our current constitutional moment. He’s decided to bring his unique brand of political tone deafness to interpreting the antebellum constitution of the first half of the 19th century. The result is his latest book The Broken Constitution: Lincoln, Slavery, and the Refounding of America.
For all its flaws, Feldman’s book has one virtue. It clarifies why his analysis of our present constitutional moment is so consistently off. He ignores historical actors whose arguments require more than summary dismissal and only engages with opposing views that are easier to knock down. He justifies this by declaring by historical fiat that views he ignores are not politically feasible. He doesn’t fully understand the views of those he considers correct, to say nothing of the people he disagrees with.
I’m not the only person to notice this. James Oakes, a history professor who has written several books on the debates over the interpretation of the antebellum constitution, wrote a scathing review of Feldman’s new book for The New York Review of Books. Oakes’ review addressed the major claims Feldman made in The Broken Constitution and found them wanting. One point in particular caught my attention—Oakes’ withering assessment of Feldman’s superficial engagement with antislavery constitutionalism.
“To make his case,” Oakes charged “[Feldman] must discount much more than the history of accelerating antislavery policy during the Civil War. He must expunge the entire record of antislavery constitutionalism stretching back to the founding era.” More specifically, Oakes contended that Feldman did not “even hint that proslavery and antislavery forces developed very different interpretations of the what the fugitive slave clause actually meant.”
Feldman wrote an outraged reply letter to the NYRB. He alleged Oakes’ review was “a case study in whitewashing the central role of race and slavery in the history of the US Constitution.” Such a view, alleged Feldman, “cannot serve as the basis for a usable past.” Denying he ignored the antislavery constitutionalists, he growled in a footnote that “[nearly every time Oakes says the book “ignored” something (and there are many), it is the subject of extended discussion, often of many pages. If Oakes himself did not read the book, the fact checkers ought to have done it for him.” Not only Oakes, but the NYRB itself, stood condemned of a sloppy scholarly drive-by.
Here’s the thing, I read Feldman’s book; I also read books by Oakes on the same topic, specifically The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution and The Scorpion’s Sting: Antislavery and the Coming of the Civil War. Oakes is right. Feldman does ignore vast swaths of antislavery constitutionalism extensively documented in Oakes’ books. Both Crooked Path and Scorpion’s Sting are cited by Feldman in The Broken Constitution, but one could be excused for wondering if Feldman read them at all.
The substance of this dispute goes beyond disciplinary turf wars between a law professor and history professor. Oakes isn’t a constitutional scholar, but his work has unearthed a history of constitutional reasoning that stands in contrast to Feldman’s method. It points to a way of thinking about and working within an imperfect constitutional order that provides a “usable past” in a way that Feldman’s story does not.
Feldman ignores interpretive diversity
This can be seen clearly by looking at the particulars of the dispute. In his reply to Oakes in the NYRB, Feldman takes umbrage with Oakes stating that he “barely mentions” the antislavery constitutionalists. Au contraire says Feldman, “I discuss the subject at great length, explicating the views of Federick Douglass, Angelina Grimké, William Lloyd Garrison, Lysander Spooner, and adding to the literature the voices of less well-known Black abolitionists like Charles Lenox Remond, William Howard Day, and Hezekiah Ford Douglas.”
Feldman’s retort sounds persuasive, but fails on closer inspection. He focuses almost exclusively on the most extreme thinkers. Angelina Grimké and Lysander Spooner believed the Constitution gave Congress the ability to abolish slavery in the states. Charles Lenox Redmond, Hezekiah Ford Douglas, and William Lloyd Garrison believed the opposite extreme: that the Constitution was rotten to the core, providing no path to abolition, even on a gradual state-by-state basis (this is basically Feldman’s view too). Frederick Douglass believed both views at different times in his career.
The one thinker Feldman presents in his book that comes closest to taking a nuanced position is William Howard Day. Feldman presents Day as arguing that the Constitution is like the Bible. It can be interpreted to bad ends, but the document is better than its current interpreters. Fair enough, as far as it goes.
But Feldman presents himself as having read Oakes’ books so he should know there are better antislavery legal arguments. He just passes over in silence antebellum legal thinkers like William Goodell, Theodore Dwight Weld, as well as numberless antislavery activists, government petitioners, and party platform drafters. These people were trying to craft nuanced, textually based, and historically informed interpretations of the Constitution construing the scope of its compromise with slavery as narrowly as possible.
Over decades, in the face of long odds, they continued to argue their case. Until 1860 when the Republican party won the presidency advocating for significant portions of the antislavery interpretation of the Constitution. Feldman’s failure to engage with these thinkers impoverishes us in two ways. First, in our understanding of the past. Second, in our understanding of how constitutional change happens. Before getting to the second point, let’s continue considering Feldman’s blinkered historical narrative.
Feldman ignores historical contingency
Feldman’s narrow and selective engagement with the antislavery constitutional theorists results in a failure to understand the historical actors he does engage with. Consider how Feldman and Oakes discuss the nature of the constitutional compromise on slavery. Oakes calls this compromise “the federal consensus” and states that all parties to constitutional debates “agreed that Congress had no power to “interfere” with—that is, abolish—slavery in a state.” Feldman calls it “the compromise constitution” which stood for a belief “that the federal government had no constitutional power to end slavery”.
Feldman alleges Lincoln shared his view, but his view doesn’t accurately render Lincoln’s perspective on the nature of the Constitution’s compromise with slavery. Oakes’ characterization more precisely renders Lincoln’s view. As Lincoln said in his First Inagural Address: “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists.” Feldman’s “compromise constitution” rendering cuts out the italicized portion of the sentence. Oakes’ “federal consensus” characterization keeps it in place.
This may seem like a minor quibble, but the italicized portion was of vital importance for the antislavery constitutionalists. As Oakes articulates in Crooked Path. If the federal consensus only protected slavery in states where it existed, then logically it also:
protected abolition in the states: Congress had no power to interfere with emancipation in states that had established the presumption of freedom. This… raised a number of contentious constitutional questions. Could a state where freedom was presumed guarantee the rights of due process to men and women accused of being fugitive slaves? Did masters forfeit their slave property when they voluntarily carried their slaves into northern states that presumed freedom? And how far did that presumption of freedom extend? Did slavery follow the Constitution when southern masters migrated westward, or was freedom the “normal condition” of the territories? Did slaves acquire constitutional rights in US territorial waters?
In short, while Congress could not end slavery in a state, it potentially had vast powers to stop its expansion outside the states where it already existed.
Feldman’s belief that the federal government could not end slavery, full stop, obscures that federal and northern state governments had the power to grind away at slavery in several ways that could make it untenable in the states where it still existed. To pick one example, they could provide due process rights to blacks in free states giving them a right to trial before being taken out of state by slave catchers, effectively increasing the cost and burden on reclaiming enslaved individuals who dashed across state lines seeking freedom.
However, Feldman baldly asserts this idea of ending slavery via gradual emancipation was “logically impossible” and a “fantasy” because of the invention of the cotton gin after the enactment of the Constitution. Feldman acknowledges founders like Jefferson and Madison thought gradual emancipation was the most likely outcome but this “epoch-making technological innovation thwarted the framers’ expectations”. That’s it. That’s the only reason he offers.
It’s hard to know where to start with such a grand monocausal claim, but let’s start with the obvious. The Northern states elected Abraham Lincoln in 1860 on a platform to halt the expansion of slavery beyond where it currently existed. The Southern states seceded because they felt this was an existential threat to slavery. Maybe if Feldman had been there to explain the cotton gin to Jefferson Davis things would have gone differently. He was not. And the war came.
If one assumes that, as everyone in 1860 seemed to, that gradual emancipation was not a pipe dream, it’s worth considering the various interpretations propounded by antislavery constitutionalists to encourage gradual emancipation. Their textual ingenuity and creativity has a lot to teach us about arguing constitutionally under disheartening conditions.
The actual debate, fully considered
Since Feldman cuts off the debate before it begins he not only obscures the nuances of antislavery readings of the Constitution, but proslavery readings as well. Nowhere is this more apparent than his discussion of the fugitive slave clause. The clause is found in Article IV, Section 2 of the Constitution and reads:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Feldman dedicates a few sentences to interpreting its meaning: “In intent and effect, this clause superseded the Northern states’ commitment to principles of abolition and freedom. It subordinated the courts and other legal institutions of the free states to the constitutional principle of sustaining slavery.” For Feldman the discussion is over.
Like the proslavery constitutionalists, Feldman’s reading assumes that the constitution was a text primarily animated by a right to property. But the antislavery constitutionalists rejected this reading, arguing instead that the constitution should be read in the light of the right to liberty.
Proslavery readers of the constitution scoffed at this argument for reasons that appear nowhere in Feldman’s book. Oakes fills in this gap in Scorpion’s Sting and Crooked Path, citing proslavery arguments that the idea of property, including property in slaves, had existed since time immemorial. According to proslavery thinkers, the fact that there had never been a carve out for the enslaved from the concept of property showed that they should be included under Fifth Amendment’s promise that “No person… shall be deprived of life, liberty, or property, without due process of law.” The emphasis was on the property. Slaves were property. The Constitution protected property. Therefore the Constitution enshrined slavery.
Not so, retorted their antislavery adversaries. One of the goals of the Constitution, by the express terms of its preamble, was to “secure the Blessings of Liberty”. Furthermore, as well regarded common law jurists like Lord Mansfield made clear, the default presumption under the common law was that of liberty. The only way that slavery could exist was under positive law, i.e., written statutes creating the property right. The antislavery constitutionalists didn’t deny that states like Georgia had such laws, but states like Illinois and the US federal government did not. The right to property in the enslaved ended at the line of the state where the property right was recognized absent some express statutory language to the contrary. The fugitive slave clause, they said, had to read in the light of this right to liberty—narrowly.
Let’s pause to note here that nothing in the Constitution decisively answers whether the right to liberty or the right to property should take priority. There is no constitutional clause that says “in case of an interpretive impasse, favor slaveholders’ property rights over blacks’ liberty rights”. Both sides believed their interpretive prior existed in natural law and should therefore obviously be the key to the text. Most of the disputes between the proslavery and antislavery constitutionalists turned on what the Constitution doesn’t say and what each side thought Congress, the president, and the courts should fill in the silence with.
As an example, consider the fugitive slave clause in the larger context of its location in Article IV, which discusses the relationship between the various states. Some sections give the federal government powers to regulate interstate relationships. For example, Section 3 gives Congress the authority to “make all needful Rules and Regulations” in any new territory acquired by the federal government. In contrast, Article IV, Section 2 (containing the fugitive slave clause) granted no explicit authority to the federal government to enforce this obligation.
Some radical antislavery constitutionalists used this silence to argue that the federal government had no authority to regulate the return of fugitive slaves. This rendered the Fugitive Slave Acts enacted by Congress in 1793 and 1850 unconstitutional. It meant that states without slavery could decide what due process protections they wanted to give to blacks who fell into the hands of slave catchers.
Other antislavery constitutionalists took a more moderate position. They arrived at it, however, via a clever interpretive move they shared with their more radical fellow travelers. The Constitution, they observed, never explicitly mentions the legal concept of slavery. Anytime the Constitution addressed issues arising from state laws that recognized slavery, the text did not describe slaves, but rather “such persons” (the slave importation clause), “all other persons” (the three-fifths clause), and “persons held in service” (the fugitive slave clause).
For Feldman this is a mere “euphemism”, but the antislavery constitutionalists chose to read the Constitution as if it meant what it said. The Constitution did not mention slavery when it obviously should because, at the federal level, the Constitution did not recognize slavery. Slavery was merely a legal category under the laws of individual states. Under the Constitution all humans, slave and free, were “persons” in the eyes of the federal government.
As “persons” they were entitled to the protection of the Fifth Amendment which promised “[n]o person shall… be deprived of life, liberty, or property, without due process of law.” Note the difference in emphasis from the proslavery interpretation of the Fifth Amendment. If anything deprived a person of liberty, antislavery advocates argued, it was being taken into slavery by a slave catcher who alleged a person was a slave. Shouldn’t a slave catcher have to prove that the person they had in their clutches was a slave via a more robust standard than what was guaranteed under the Fugitive Slave Act of 1850—a token hearing in front of a magistrate who got paid more if he found the person in the slave catcher’s hands was a slave? In 1860 people answering this question “yes” had a candidate who indicated he agreed: Abraham Lincoln.
The proslavery constitutionalists thought this was ridiculous. So did the Supreme Court. As Oakes observed in Scorprion’s Sting “From Prigg [v. Pennsylvania] to Dred Scott [v. Sandford], the justices insisted with increasing vehemence that slaves were property, not persons, under the Constitution.” No matter. The antislavery constitutionalists did not let the current staffing on the Supreme Court deter them. In fact, they took their arguments further.
If the federal government did not recognize slavery, and all persons were protected by the due process clause of the Fifth Amendment regardles of race or property status, then this constrained what “needful Rules and Regulations” Congress could enact in federal territories under Article IV, Section 3 discussed above. To recognize slavery via statute in the federal territories was to deny enslaved blacks liberty without due process of law. It also required the federal government to regulate a type of property not explicitly recognized under the Constitution.
For antislavery constitutionalists, this step by step textual analysis led to one conclusion: the federal government could not allow slavery in the federal territories. In 1857 Chief Justice Taney issued his infamous opinion in Dred Scott v. Sandford saying this was impossible. In 1860, partly in reaction to that decision, there was a presidential candidate who promised to effectively ignore the Supreme Court’s broad holding and not to let slavery extend into the federal territories: Abraham Lincoln.
The slaveholders of the South in 1860 saw all this and knew the stakes. They sputtered: “Leave the fate of their attempts to reclaim their property in the hands of Republican-appointed judges in the North? In front of Northern juries whose minds had been corrupted against sacred property rights by abolitionist propaganda?” They fumed: “A halt to the expansion of slavery in the territories? Making it so each future state has no investment in perpetuating the property arrangements of the Southern slaveholders? How long could the three-fifths clause boosting our representation in the House continue to protect us, to say nothing of increasing the sectional imbalance in the Senate?”
The southern slaveholders were confident they knew the answers to their questions and they didn’t like them. That’s why they tried to leave the union. They probably would have made the same choices even with Feldman insistently telling them the cotton gin made slavery indestructible. They may have been morally stunted, but they weren’t stupid. They knew which way the wind was blowing and it was against a system they had profited from tremendously.
The fight makes the meaning
There’s more that could be said about the distortions and misleading historical analysis in Feldman’s book. How he ignores antebellum debates over wartime emancipation after the Revolutionary War, the War of 1812, the Seminole Wars, and in the lead up to the Civil War (discussed over the course of 62 extensively documented pages in Oakes’ book Scorpion’s Sting). How Feldman disregards the existence of the First Confiscation Act of 1861 and its slave emancipating implementation by the Lincoln Administration (the topic of 37 pages of granular legislative and administrative detail in an Oakes book Feldman doesn’t cite, Freedom National: The Destruction of Slavery in the United States 1861-1865). Or how the only time Feldman discusses the Fifth Amendment’s due process clause in any detail it’s to defend the rights of suspected Confederate spies rather than blacks in the hands of slave catchers (he could have engaged with the discussions in either Scorpion’s Sting or Crooked Path to avoid this unfortunate disparity in constitutional solicitousness). But to get lost in the details would be to obscure the core philosophical error from which all Feldman’s mistakes flow: his belief that he’s making “usable history” and Oakes is not.
The story Feldman tries to tell in The Broken Constitution is not merely one of a “compromise constitution”, but also a story of our current “moral constitution” which he informs us “we revere today”. We revere it, according to Feldman, because the 13th, 14th, and 15th Amendments of the Reconstruction era removed the stain of slavery and racism from our constituional regime.
Let’s assume, for the sake of argument, we in fact “revere” our current constitution in spite of anti-democratic features like gerrymandering, the electoral college, and the Senate. At the very least, we don’t revere it because of the Reconstruction-era amendments. They did not make our constitution moral. In less than a decade after their enactments Jim Crow, lynching, convict leasing, and voter suppression were the order of the day for over eighty years. Feldman calls this a “betrayal” and laments it, but doesn’t really seem to reckon with the fact this history reveals that the words of the Constitution don’t make it moral, how we choose to interpret and implement the words does. If we revere our Constitution it’s because what we do with it makes it reverable.
Feldman’s abstract labels of “compromise constitution” and “moral constitution” collapses this essential gap between a text and its interpretation. How is a history like this usable? There is nothing to be done but sit in silent awe at the wonder of our constitutional order as interpreted by Noah Feldman. Anyone who would complicate the story should just be ignored. There is one correct way to read the text and Professor Feldman has found it.
Oakes, incidentally, used to hold a view similar to Feldman’s regarding the “correct” interpretation of the antebellum Constitution. As he candidly admits in his most recent book Crooked Path: “Once upon a time a firm yes or no [to the question “were the antislavery constitutionalists right?”] would have come easily to me, but I now think it’s a mistake to dismiss antislavery constitutionalism too readily.” His historical analysis of multiple antislavery constitutionalists, not just the ones that can be dismissed out of hand, is an attempt to rectify his initial knee-jerk response.
He also raises another essential point: “Clouding the issue [of who was correct] is the fact that the question between [antislavery and proslavery constitutionalists] was not simply Who got the Constitution right? but who had the power to enforce one version of the Constitution over the other.” As Oakes notes, the three-fifths compromise gave Southern slaveholders a representational boost in Congress to help enforce their vision of the Constitution. Scholars have noted the South had other structural advantages as well. However, this benefit slowly eroded as the United States expanded and the population of Northern states increased.
But it wasn’t just population distribution that was changing. Minds were changing too. It started with antislavery constitutionalists arguing that the way the Southern slaveholders read the Constitution wasn’t the only way to read it. They presented these arguments in court. They lost frequently, but they kept making them. Some members of Congress started making these arguments. They lost floor vote after floor vote, but they kept making the arguments. People who made these arguments formed political parties and ran on political platforms endorsing their constitutional views. These people lost election after election, but kept forming parties. And then, finally, in 1860 they stopped losing. One side didn’t like the look of lawful election results and its anticipated constitutional consequences so they tried to leave. We all know what happened next.
I don’t think historians are required to make “usable” history, but if there is a usable history of the antebellum constitution, a history of how people tried to use the constitution is surely it. Throwing in the towel in because, as Feldman put it in a testy Twitter exchange, “0%” of the institutional actors endorsed the interpretations that Oakes reports is not only factually false. It also ignores how constitutional change happens.
Part of what we vote on in elections is how the Constitution should be interpreted and used. People voting in 1860 didn’t need this explained to them. The Southerners who seceded didn’t need it explained either. I can’t believe this needs to be explained to a constitutional law professor who wrote a (quite good) book about the court packing fight during the New Deal and its consequences, but apparently it does.
The kind of person who reads an essay like this to the end doesn’t need to be told that the current state of affairs for progressive constitutional interpretation is bleak. Feldman’s Bloomberg commentary and books like The Broken Constitution cannot help us understand or navigate it. Histories like the kind told by James Oakes provide a better guide to our moment.
Oakes’ story provides a way of looking at constitutional interpretation that fits how we got to our current right wing jurisprudential ascendancy. It explains how we got from a former Chief Justice of the United States calling the individual right to bear arms a “fraud” in 1991 to a judicially protected constitutional right in 2008. Also how the Supreme Court’s 7-2 holding in Roe v. Wade turned into an expected 5-4 reversal over the course of 49 years. We are where we are because people fought for it over the course of years and changed the relevant actors in government.
At the end of day, it doesn’t matter how moral our constitution is on paper, what matters is the morality of the people empowered to say what it means. Advocating for solutions is outside the scope of this essay, but maybe liberal legal thinkers should start advocating that we reconsider who we has the power to interpret the Constitution. Because we all have a stake in this project. Despite what Feldman argues, moral constitutions aren’t just written. They must also be made.
Featured Image is First Reading of the Emancipation Proclamation by President Lincoln, by Francis B. Carpenter