In this bold, perceptive offering, the Harvard law professor Noah Feldman contends that as president, Abraham Lincoln unilaterally tore apart and remade the Constitution, ensuring the demise of slavery but also “effectively transforming himself into a constitutional dictator.” While Feldman’s book, “The Broken Constitution: Lincoln, Slavery, and the Refounding of America,” has many valuable insights, its argument downplays some crucial context. Feldman indicts Lincoln for his wartime suspension of civil liberties but has little to say about the abuses of power that provoked the constitutional crisis: Southern enslavers’ prolonged suppression of free speech or their radical defiance of Lincoln’s lawful election.

Feldman’s early chapters trace Lincoln’s political rise and his abiding commitment to the “compromise Constitution.” As a young politician, Lincoln upheld the prevalent view of the Constitution as a blueprint for the Union’s preservation and expansion, premised on the sanctity of compromises establishing, as Feldman writes, a “balance of power between the free and slave states.” Lincoln’s penchant for compromise was grounded in his admiration for the Whig statesman Henry Clay, and in a belief that the South, along with the North, should be willing to make some concessions on the issue of slavery.

Feldman briefly touches on the abolitionists’ challenges to this pro-compromise centrism and their debates over whether to condemn the Constitution as proslavery or interpret it as anti-slavery. Such debates were possible because the document was, Feldman stipulates, “self-contradictory” in its provisions on slavery.

(Farrar, Straus and Giroux)

Lincoln grew increasingly uneasy, during the Mexican War (1846-1848) and its aftermath, at the ways Northerners were paying a moral price for their fealty to the compromise creed. Lincoln was pushed to modify his original position by proslavery Southerners who asserted an ever more aggressive agenda of slavery expansion in the 1850s, as evidenced in the Kansas-Nebraska Act and the Dred Scott decision, both of which invalidated the 1820 Missouri Compromise. As Lincoln joined the nascent Republican Party, he tried to salvage the compromise Constitution, but he now interpreted it as geared toward slavery’s containment and eventual extinction.

Moving on to Lincoln’s conduct as president, Feldman explores how he justified coercing the seceding states back into the Union. Feldman deftly contrasts President James Buchanan’s position that the federal government was powerless to make war on the states with Lincoln’s conviction that the president had the constitutional duty to suppress a rebellion. According to Feldman, in asserting the federal government’s sovereignty over the disaffected South, Lincoln rejected the compromise Constitution’s premise that the people must consent to be governed.

In places “The Broken Constitution” reads like an arraignment of Lincoln, accusing him of illogical, incoherent, paranoid thinking and of “subverting” the Constitution. Feldman’s chapter on the wartime suspension of the writ of habeas corpus is the crux of his case. Suspending the writ meant that the government could use martial law to arrest and hold civilians indefinitely without trial. This presidential policy led to widespread military arrests and press censorship that targeted critics of the administration as well as Confederate collaborators. Lincoln sought to justify the suspension by claiming that the Constitution authorized it in times of “dangerous emergency” and that it was necessary to abrogate this one legal protection to enforce the broader rule of law that secessionism threatened.

Scholars have debated the extent of Lincoln’s abridging of free speech, with historians such as Harold Holzer emphasizing that much of the press censorship during his presidency was uncoordinated and spontaneous. But Feldman dismisses such arguments as apologetics.

He asserts that Lincoln’s policies “created the most extreme suppression of free speech to occur at any time in U.S. history.” Such a categorical claim is misleading and reveals an omission in this book: Feldman’s lack of attention to Southern enslavers’ manipulation and defiance of the Constitution. The Southern ruling elite used coercion and censorship to maintain their political dominion. Southerners destroyed anti-slavery tracts, imposed a “gag rule” in Congress that silenced the voices of anti-slavery petitioners, engaged in widespread mob attacks on reformers and adopted draconian laws that criminalized anti-slavery expression. There was no free speech whatsoever in the antebellum South for Blacks, enslaved or free, and virtually none for White Southern dissenters or for anti-slavery Northerners who wished to make inroads with the Southern electorate. The White South brooked no compromises on this issue.

In the eyes of Republicans such as Lincoln, the Southern “Slave Power” (ruling elite) bent the Constitution again and again, and attempted, in rejecting the outcome of a presidential election in 1860 and leaving the Union, to break it beyond repair. Republicans’ avowed aim was to loosen, through a combination of incentive and force, the hold that secessionists had over the Southern masses.

Feldman acknowledges periodically that it was secessionists who broke the Constitution, but he does not accord nearly as much space to that theme as he does to the rupture created by Lincoln. The president’s ultimate reversal, Feldman’s final chapter argues, came on the issue of slavery. Clinging to the belief that the federal government could not lawfully impose abolition on the slave states, Lincoln hoped early in the war to salvage the constitutional principle of compromise over slavery, through proposed measures such as compensating those in border states who freed their enslaved people.

But as it became clear that targeting slavery was a military necessity, Lincoln embraced the idea that he could use his war powers as commander in chief to “impose new norms on Southern society by force.” As public opinion in the North shifted toward anti-slavery, Lincoln redefined emancipation as a moral duty. In so doing, Feldman argues, he “broke all the norms” of the prewar compromise Constitution and ushered in a new paradigm of the “moral Constitution,” cleansed of its immoral aspects and remade into a “worthy object of veneration and moral aspiration.”

In drawing a sharp contrast between Lincoln’s political purposes and his moral ones, Feldman is reviving an older scholarly consensus that what began as a war for Union changed into a war against slavery. Recent scholarship has moved away from this narrative and instead emphasizes the continuities in Northern war aims: Lincoln and his party saw saving the Union and undermining the Slave Power as interconnected moral and political imperatives. And Lincoln clung to his vision of a consent-based Union — of converting White Southerners, through his lenient amnesty policy, to the free-labor gospel.

Feldman’s thought-provoking case for a stark rupture in Union war aims will surely occasion lively debate. But his astute argument would have been better served by a less-polemical tone. It is jarring to hear Lincoln described as a dictator, while all of his predecessors, who had allowed slavery’s expansion and the large-scale suppression of anti-slavery sentiment, escape judgment.

The Broken Constitution

Lincoln, Slavery, and the Refounding