The Broken Constitution - Noah Feldman review by George Thomas -The Bulwark -

It is difficult to hear even the most sophisticated of political leaders speak of the Constitution of 1787 with reverence; to witness Presidents and Justices speak admiringly of the slave owners who drafted the Constitution in a closed room in Philadelphia in 1787.  The compromise preserved slavery with no intention of abolition.  It not only failed to erode or abolish slavery, it greatly expanded the slave territory by occupying land and driving out its aboriginal inhabitants, or conquering the territory of another settler nation - Mexico.  The Constitution's dreadful compromise produced history's then bloodiest war.  It divides us today.

In the 1863 Gettysburg Address - delivered at the site of the war's bloodiest battle - Abraham Lincoln reframed the vision of the country as grounded in the Declaration of Independence's opening lines - that "all men are created .equal".  The Emancipation Proclamation followed, then victory, then the 13th. 14th, and 15th Amendments.  Freedom, equal protection, and the right to vote were promised to the former chattel slaves.  But Reconstruction was largely defeated and a century of apartheid ensued. 

But as we know the civil war victors promise was not kept - until the Second Reconstruction of 1954-1964, the era of Brown v. Board of Education and the great Civil Rights Act of 1964.  It's promise too has fallen short. But we are lucky to have historians like Eric Foner whose 2019 book The Second Founding demonstrates how fundamental was the post-war Reconstruction.

Now we have Noah Feldman's new book, insightfully reviewed in The Bulwark by Claremont McKenna political scientist George Thomas. - GWC

Update: Prof. Martin Flaherty reminds me that Sean Wilentz slammed Feldman as brilliant but wrong in a book review in the Times in November 2021: https://www.nytimes.com/2021/11/02/books/review/noah-feldman-the-broken-constitution.html?smid=url-share

 

The Constitution at War With Itself - The Bulwark

By George Thomas 

The Broken Constitution

Lincoln, Slavery, and the Refounding of America
by Noah Feldman
Farrar, Strauss and Giroux, 368 pp., $30

In the Gettysburg Address, Abraham Lincoln cast the nation as “conceived in liberty” and “dedicated to the proposition that all men are created equal.” In doing so, he drew on the Declaration of Independence, dating the founding of the nation to 1776, and not to the Constitution of 1787. The relationship between the principles put forward in the Declaration and the Constitution’s compromise with slavery has long vexed America. We have too often treated the compromise with slavery as a minor detail; in much of our public discussion about the founding, the “peculiar institution” is seen as deeply problematic but we gloss over the fact that it took a civil war, costing hundreds of thousands of American lives, to wash away America’s “original sin.” And we also gloss over the fact that it took the Civil War Amendments to recast the Constitution, making it “worthy of the saving.” Americans tend to treat the Constitution written in 1787 and set in motion in 1789 as the same Constitution we currently live under in 2022, as if slavery, civil war, and a second founding were just a few rough patches in an otherwise placid journey.

Noah Feldman’s The Broken Constitution eloquently and powerfully forces us to face these too often neglected questions. As Feldman tells it, Lincoln’s Gettysburg Address foreshadows the creation of a second Constitution—a better Constitution that places the moral principles of the Declaration at its heart. But to fully apprehend Lincoln’s refounding, we need to understand that Lincoln broke the original Constitution; yet we so live in the world remade by Lincoln that we have trouble glimpsing this fundamental rupture in our constitutional past, which cannot be neatly captured by singular dates like 1619 and 1776.

***If Feldman positions the second Constitution as moral and the first as all compromise, downplaying some of important continuities between them, he is exquisitely right to force us to recognize the failures of the original Constitution. Americans—particularly those Americans who think patriotism depends on a belief in an infallible founding and a perfect Constitution—too easily gloss over how “complicated, contradictory, and fraught it was for Lincoln and the nation to overcome [the old] Constitution and remake it.” Beyond forcing us to confront the discontinuities of our constitutional history, taking in the tragic as well as the triumphant, Feldman’s The Broken Constitution is a timely reminder that the task of maintaining constitutional self-government is ongoing—the work of present generations building on the past.