Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was the framers: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787.
The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution.
I no longer think this conventional understanding is correct. Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln.
This might sound like mere rhetorical license, since Lincoln did not take office until 1861, some 70 years after the Constitution was ratified. And we all recognize that his presidency played an instrumental role in the passage of the 13th, 14th and 15th Amendments, which, by making a decisive break with slavery, became a turning point in our nation’s history.
But I’m making a stronger argument. What has become clear to me is that even before the passage of those Reconstruction amendments — indeed, as a kind of precondition for them — Lincoln fatally injured the Constitution of 1787. He consciously and repeatedly violated core elements of that Constitution as they had been understood by nearly all Americans of the time, himself included.
Through those acts of destruction, Lincoln effectively broke the Constitution of 1787, paving the way for something very different to replace it. What began as a messy, pragmatic compromise necessary to hold the young country together was reborn as an aspirational blueprint for a nation based on the principle of equal liberty for all.
Today, when the United States is engaged in a national reckoning about the legacies of slavery and institutional racism, the story of Lincoln’s breaking of the Constitution of 1787 is instructive. It teaches us not only that the original Constitution was deeply compromised, morally and functionally, by its enshrining of slavery, but also that the original Constitution was shattered, remade and supplanted by a project genuinely worthy of reverence.
Let’s go back to the 18th century. Americans today tend to think of the Constitution of 1787 in exalted moral terms. But the history is otherwise: The original Constitution was a complex political compromise grounded in perceived practical necessity, not moral clarity.
The need to garner the support of smaller states, for example, gave us the Senate. More damning were the compromises over slavery, without which the Constitution could never have been ratified: the repugnant “three-fifths” provision, by which enslaved people were counted as three-fifths of a person for purposes of political representation; the promised 20-year preservation of the slave trade; and the fugitive slave clause, which required even free states to support slavery by returning escapees to their putative masters. These compromises were reaffirmed and reinforced by further compromises enacted by Congress from 1820 to 1850.
In April 1861, when the Civil War began, Lincoln was thoroughly committed to the compromise Constitution, which he had endorsed and embraced for his whole political life. Indeed, the month before, in his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.
“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” he said, vowing never to defy what was “plainly written” in the Constitution. “I believe I have no lawful right to do so, and I have no inclination to do so.”
But in the 18 months that followed, Lincoln violated the Constitution as it was then broadly understood three separate times.
First, he waged war on the Confederacy. He did this even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that neither the president nor Congress had the lawful authority to coerce the citizens of seceding states to stay in the Union without their democratic consent. Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based.
Second, Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in US history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.
Lincoln justified both of these constitutional violations by a doubtful theory of wartime necessity: that as chief executive and commander in chief, he possessed the inherent authority to use whatever means necessary to preserve the Union.
Third, and most fatefully, Lincoln came to believe that he also possessed the power to proclaim an end to slavery in the Southern states. When he finally did so, issuing the Emancipation Proclamation in January 1863, he eliminated any possibility of returning to the compromise Constitution as it had existed before the war.
Unlike his first two violations of the Constitution, which came quickly, Lincoln’s movement toward emancipation was agonized and slow, precisely because he knew that emancipation would have the effect of destroying the core of the constitutional compromise he had pledged to uphold.
As Lincoln explained in a letter to Senator Orville Browning of Illinois in September 1861, emancipation would be “itself the surrender of the government” he was trying to save. “Can it be pretended that it is any longer the government of the US — any government of Constitution and laws,” Lincoln asked, if a general or a president were able to “make permanent rules of property by proclamation?”
In the end, Lincoln’s decision to issue the Emancipation Proclamation turned on his realization that the war could not be won as he had originally hoped — namely, by inducing the Southern states to rejoin the Union on compromise terms similar to the status quo before the war. To proclaim the enslaved people of the South as emancipated was to announce that there was no going back. The original compromise Constitution would no longer be on offer, even if the South gave up and rejoined the Union.
Contemporary observers, even those unsympathetic to slavery, understood that the Emancipation Proclamation left the original Constitution in tatters. The retired Supreme Court justice Benjamin Curtis, who had dissented from the notorious 1857 decision in Dred Scott v. Sandford (in which the court held that Americans of African descent could not be citizens), said as much in a pamphlet condemning Lincoln’s declaration as a repudiation of the constitutional rule of law.
“By virtue of some power which he possesses,” Curtis wrote, Lincoln “proposes to annul laws, so that they no longer have any operation.”
In the Emancipation Proclamation, Lincoln did just that. The 13th Amendment, which with Lincoln’s encouragement was passed by Congress and sent to the states in February 1865, outlawed slavery in the United States. But in a meaningful sense it merely formalized Lincoln’s guarantee, in issuing the Emancipation Proclamation nearly three years before, that whatever new constitutional order followed the war would no longer be a slavery-based compromise.
Likewise, the 14th and 15th Amendments, enacted after Lincoln’s death in April 1865, formally secured the equal protection of the laws and enfranchised African American men. But Lincoln had already transformed the Constitution from a political compromise into a platform for defending moral principles by invoking its authority to end slavery.
In the last paragraph of the Emancipation Proclamation, for example, Lincoln declared “this act” to be “warranted by the Constitution” — notwithstanding the consensus view to the contrary, which he himself had long endorsed.
The fact that the Constitution of 1787 was not so much modified as broken and remade during and after the Civil War should be a starting point for nuanced conversations about the true meaning of the Constitution today. Indeed, even before Lincoln broke the Constitution, some of the most sophisticated thinkers about the nature of the Constitution were attuned to the complexities of the question.
Frederick Douglass, for example, began his career as an abolitionist in the late 1830s by rejecting the Constitution as immoral. Over time, however, his views changed. In 1850, he wrote that “liberty and slavery — opposite as heaven and hell — are both in the Constitution.” The Constitution, he concluded, was “at war with itself.”
Even this would turn out to be a transitional position for Douglass. In 1851, he declared that he now believed that slavery “never was lawful, and never can be made so.” He pointed out, as some defenders of the framers still do today, that the Constitution of 1787 did not actually use the word “slavery.” Douglass would hold this view for the next decade, until the war came. It was intended to leverage a redemptive reading of the Constitution to change the existing document into something new and better.
Of course, the “moral” Constitution made possible by Lincoln’s defiance of the Constitution of 1787 has too often been thwarted. About a decade after the Reconstruction amendments were ratified, the moral Constitution was betrayed by the imposition of segregation and disenfranchisement on Black Southerners. It took Brown v. Board of Education in 1954 and the modern civil rights movement to start redeeming the promise of Lincoln’s new Constitution.
Persistent inequality still afflicts the United States, including inequality before the law of the kind the moral Constitution prohibits. The reality is that Lincoln’s moral Constitution, like all constitutions, is not an endpoint but a vow of continuing effort. Through that Constitution, we define our national project and strive to achieve it, even if we never fully succeed.
The New York Times
