Was the Constitution Pro-Slavery? Jefferson Davis Thought So. Abraham Lincoln Didn’t.

By Sean Wilentz. Sean Wilentz teaches at Princeton and is the author of “No Property in Man: Slavery and Antislavery at the Nation’s Founding.” 

He reviews THE BROKEN CONSTITUTION Lincoln, Slavery, and the Refounding of America By Noah Feldman. Excerpts:

"From the start, however, Feldman’s depiction of the Constitution’s connection to slavery is questionable. Although he calls it the “compromise Constitution,” Feldman’s Constitution was almost seamlessly pro-slavery. The famous negotiations that offered concessions to the slaveholders come across more like abject submission. Feldman ignores the antislavery currents inside the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks how much the Constitution’s provision authorizing abolition of U.S. participation in the Atlantic slave trade was an antislavery victory over the lower South, which tried to block it as a dealbreaker — a measure that, even when weakened by a maneuver Madison bemoaned, was the first serious blow ever against the trade undertaken in the name of a national government. Feldman fails to see the Constitution as an ambiguous document that offered protections to the slaveholders but also contained considerable antislavery potential, sufficient for thoughtful if wishful Northern abolitionists like Benjamin Rush to hail it as the death knell of slavery."

"In fact, as historians have been detailing for decades, antislavery spokesmen and organizations, from the framer Benjamin Franklin in 1790 up to and including Lincoln’s Republican Party, repeatedly seized upon provisions in the Constitution, from the preamble’s “general welfare” clause to the provision granting Congress authority over the national territories, as instruments to hasten slavery’s demise. Three generations of antislavery constitutionalists, while admitting that the Constitution barred Congress from directly abolishing slavery in the states where it already existed, pushed numerous strategies to place slavery, as Lincoln would put it, “in course of ultimate extinction.” The antislavery constitutionalists’ demands — above all to halt slavery’s expansion, bar the admission of new slaveholding states and uphold state laws that would obstruct the capture and return of fugitive slaves — in time persuaded no less stalwart an abolitionist than Frederick Douglass that the Constitution was a “glorious liberty document.” As incorporated in the Republican Party platform, those demands led directly to Lincoln’s ascension in 1860, Southern secession and the civil war that ended in slavery’s abolition."

"Contrary to Jefferson Davis, Lincoln and the Republicans’ triumph did not break the Constitution; it broke the pro-slavery view of the Constitution while vindicating the long beleaguered antislavery view. Nor did Lincoln break an already broken Constitution by assuming quasi-dictatorial powers in order to preserve the Union. Feldman’s charge that Lincoln violated respect for constitutional popular sovereignty by refusing to acquiesce in Southern secession elides that the Constitution established the majority as sovereign in national affairs, and it rests on the assumption, rightly disputed by Lincoln, that the Southern fire-eaters truly represented the will of the Southern citizenry. Even President James Buchanan stated that secession was unconstitutional."

"it strains credulity to indict Lincoln for tyranny because he took emergency actions, almost exclusively against Confederates, spies and other traitors, in order to save democratic government, all the while holding open elections and suffering the merciless attacks of Democrats."

"Finally, Feldman cuts corners to claim that the Emancipation Proclamation was an arbitrary violation of slaveholders’ property rights. In reality, Lincoln wrote the proclamation armed with abundant legal opinion, including a well-known pronouncement of John Quincy Adams affirming the president’s authority to emancipate the enslaved when invasion or insurrection threatened the nation. As an antislavery constitutionalist, meanwhile, Lincoln never conceded an absolute right to property in humans."