In response to:

Was Emancipation Constitutional? from the May 12, 2022 issue

To the Editors:

James Oakes’s review of my book The Broken Constitution [NYR, May 12] is a case study in whitewashing the central role of race and slavery in the history of the US Constitution. Like other work by Oakes and his fellow hagiographers, the review systematically distorts or suppresses incontrovertible facts of law and history. Theirs is an exercise in denying the explicit and express protection of slavery in the original Constitution and bowdlerizing Lincoln’s consistent record of supporting and upholding the constitutional guarantee of slavery throughout his public career, even after he became president. Their twin dogmas are that the framers cannot have supported race slavery and that Lincoln’s Emancipation Proclamation therefore cannot have broken the Constitution. The trouble with these reassuring-sounding dogmas is that they are legally and historically false. And falsehood, particularly falsehood that denies the realities of historical racism, cannot serve as the basis for a usable past, whatever may be believed by an aging generation of would-be guardians of the American myth.

The Constitution of 1787 enshrined slavery in the three-fifths clause, in the unamendable guarantee that the slave trade would be allowed for at least twenty years more, and most brutally in the fugitive slave clause, which bound even free states to obey the laws of slave states by using their own legal systems to return to bondage enslaved persons who managed to escape their shackles. The document, obviously, thus contained no guarantee of equal protection anywhere, including the Bill of Rights. As Alexander Hamilton told the New York ratifying convention with regard to the three-fifths deal, all this was a necessary “accommodation” struck in Philadelphia: “Without this indulgence, no union could possibly have been formed.”

It may seem astounding that, a quarter of the way through the twenty-first century, anyone would still be trying to deny that these constitutional provisions enshrining slavery made it the law of the land under the supremacy clause of the Constitution. But that is just what the review does, citing Sean Wilentz’s apologia No Property in Man (2018) for the claim that some slaveholders sought a still more explicit guarantee than the fugitive slave clause at the Philadelphia convention. Oakes writes, “Years later…southerners claimed that the fugitive slave clause vested owners with the very right they had been denied in 1787.” This reasoning is either legally ignorant, Orwellian doubletalk, or maybe both. The fugitive slave clause explicitly and inherently guaranteed slaveholders’ legal right to the return of their enslaved human property. It did not deny that right.

As a matter of his own political faith, Lincoln embraced the Constitution of 1787, and with it the slavery compromise. In 1838, as a young politician, he inveighed against would-be dictators who would seek fame “at the expense of emancipating slaves, or enslaving freemen.” In his first inaugural address (the one that isn’t on the Lincoln Memorial), he stated bluntly, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.”

In perhaps the most stunning passage in a review studded with misrepresentations and outright falsehoods,* Oakes simply pretends that Lincoln’s explicit promise was never made. He mentions the inaugural speech, points to Lincoln’s repeated warning to seceding states that without the Union their fugitive slaves would not be returned, and concludes, “None of this suggests that Lincoln came into office promising to ‘protect slavery.’” In fact, the passage I quoted literally does say that. Lincoln was also literally saying that if the slave states remained in the Union, the northern states would return their fugitive slaves. Stronger evidence of bad-faith, bad-history apologetics could hardly be imagined.

There is more—much more, all of it apparently intended to discredit by distortion. Contra Oakes’s first sentence, I do not “believe” the Confederate states had a constitutional right to secede, nor does my book say so. Far from “barely mention[ing]” antislavery constitutionalism, 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.

Oakes says I endorse “the views of proslavery Confederates,” but he knows this is a lie. I extensively discuss (over four full pages!) the opinion of Supreme Court Justice Benjamin Curtis, a Boston man who had dissented in Plessy v. Ferguson and wrote a long pamphlet explaining the unconstitutionality of the Emancipation Proclamation. Oakes also accuses me of calling Lincoln a dictator, as though this were a sacrilegious insult rather than the subject of pages of close analysis. But it was Lincoln himself who, six months into his presidency and a year before issuing his draft of the Emancipation Proclamation, stated that military emancipation was “simply ‘dictatorship.’”


One assertion in the review is (almost) true: “Feldman…ignores the long-standing American consensus in support of military emancipation.” My book precisely challenges the old, now-crumbling consensus that “supports” the suppression of the truth that the Constitution enshrined slavery and that the Emancipation Proclamation had to break the Constitution to end it. Lincoln’s greatness is that, in the crucible of war, he changed his mind about the constitutional compromise broken by secession, broke the Constitution by emancipation, and opened the door to the moral Constitution of the Reconstruction amendments. Denying the constitutional legacy of race slavery disserves our own capacity to imagine the necessity of constitutional change when it is required by circumstance and moral judgment.

Noah Feldman
Harvard University
Cambridge, Massachusetts

James Oakes replies:

Noah Feldman takes the title of his book as well as its opening epigraph from an 1850 speech by Jefferson Davis bewailing the flood of antislavery “fanaticism and ignorance” that had “broken” the Constitution. What follows is a book that reaffirms Davis’s belief that, contrary to those antislavery fanatics, the Constitution was a thoroughly proslavery document. Like Davis, Feldman goes on to claim that Lincoln was a dictator, that secession was constitutional, and that the Emancipation Proclamation was illegal. Feldman may protest, but by invoking the president of the Confederate States of America and parroting his views Feldman leaves himself open to the charge that he has revived long-discredited Confederate interpretations of the Civil War era.

As for me and my fellow apologists and “hagiographers”: neither I nor any historian I know of “suppresses” the compromises with slavery made at the Constitutional Convention. In a book I published only a year ago, I described the three-fifths and fugitive slave clauses as the bone and sinew of the proslavery reading of the Constitution, a reading that proved disastrously influential on both domestic and foreign policy. What I have also not suppressed, however, is the conflict between proslavery and antislavery delegates that resulted in crucial victories and defeats for both sides.

From their victories the opponents of slavery fashioned a robust antislavery interpretation of the Constitution—its reference to slaves as persons; its authorization of Congress to ban slavery from the territories, to halt the importation of enslaved Africans, to abolish slavery in Washington, D.C., and to secure due process rights for accused fugitives—an interpretation widely embraced by the northern majority leading into the Civil War. In his book, and again in his letter, Feldman erases this antislavery interpretation of the Constitution. In the process, decades of conflict over slavery are rendered invisible, indeed incomprehensible.

I noted in my review that Feldman says nothing about the central importance of federalism in the debates over slavery, with the result that he misunderstands both the significance and the conventionality of Lincoln’s promise not to “interfere” with slavery in the states where it existed. Feldman claims that I ignore Lincoln’s promise, despite my explicit reference to it in the review and my extended accounts of it in my last three books. It is more than a little ironic that in a letter fulminating against the proslavery Constitution Feldman continues to disregard the fact that federalism restricted the scope of antislavery politics far more powerfully than did the fugitive slave and three-fifths clauses.

In his letter Feldman invokes the supremacy clause in a way that once again presupposes a Constitution devoid of antislavery elements. This raises questions. Could an individual state reject federal supremacy by reopening the slave trade once Congress had shut it down? If the Constitution nationalized slavery, did the supremacy clause preclude New York from passing an abolition statute in 1797? In a Constitution that deliberately refers to slaves as persons rather than property—one of those incontrovertible facts Feldman cannot controvert—did the supremacy clause not thereby dictate that accused fugitives be afforded the rights of due process guaranteed to all “persons” by the Fifth Amendment?

No less ironic is Feldman’s refusal to recognize the fact that in wartime the federal government claimed constitutional powers to interfere with slavery that it did not have in peacetime. Alexander Hamilton, Edmund Randolph, John Jay—indeed, just about every one of the Founders who went on record—affirmed that under the law of nations belligerents could emancipate enemy slaves in an effort to win a war or suppress a rebellion.

Feldman boasts of the four pages he devotes to a pamphlet questioning the legality of the Emancipation Proclamation, but he continues to ignore the sustained defenses of emancipation put forward by distinguished legal scholars during the war. Once again, the constitutional conflict is erased. Likewise, he disregards the implications of the Supreme Court’s endorsement of the president’s war powers in the Prize Cases in a decision handed down in the midst of the war itself.


By steadfastly averting his gaze from the tension between what the government could do in peacetime and what it could do in wartime, Feldman allows himself to claim that with the Emancipation Proclamation Lincoln changed his mind about the Constitution. The result is another set of blunders. He garbles Lincoln’s denunciation of a Union general for making his own policy by fiat, which Lincoln denounced as “military despotism” but which Feldman misquotes as “military emancipation.” He claims that with the Emancipation Proclamation Lincoln abandoned the federal consensus, yet Lincoln openly invoked it in 1864 and warned his fellow Republicans not to abandon the principle that Congress could not abolish slavery in a state.

Once we acknowledge the conflicts over slavery dating back to the earliest years of the republic, the fates of slavery and racial injustice can be seen more clearly as a matter of the shifting balance of political power. The question was which interpretation of the Constitution would prevail. From the 1780s to the Civil War, northern majorities in the House of Representatives voted against slavery 95 percent of the time, often to no avail because the Senate, the Supreme Court, and the executive branch were dominated by supporters of the proslavery interpretation of the Constitution. But in 1860, with the election of Lincoln and the subsequent secession of eleven slave states, the balance of power shifted decisively in favor of the antislavery tradition that, according to Jefferson Davis, had already broken the Constitution a decade earlier.

In refusing to acknowledge that tradition, Noah Feldman registers the conceit, all too common these days, that his is the first generation of white Americans to denounce racism and slavery. A bit less arrogance and a bit more modesty would seem to be in order. It would make for better history and, quite possibly, the more usable past he’s looking for.