Harvard Law Professor Noah Feldman says we originally had a “compromise” Constitution and Lincoln’s illegal actions created a “moral” Constitution which is still flawed.
Feldman whites in the New York Times that Lincoln “consciously and repeatedly violated core elements of that Constitution as they had been understood by nearly all Americans of the time, himself included”. Here are his main points:
Lincoln waged a war to coerce the Confederacy back into the Union even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that this was unconstitutional.
Lincoln suspended habeas corpus without the Congress and arrested thousands of political opponents and suppressed the free press and free speech to an unprecedented degree.
He issued the Emancipation Proclamation forever destroying the “compromise” of the original Constitution. Lincoln stated as much in a letter to Senator Orville Browning. “Can it be pretended that it is any longer the government of the U.S. — any government of Constitution and laws,”
Lincoln justified these violations by the “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”.
Don’t worry though. We now have the moral Constitution that Lincoln’s violations of the original Constitution provided us. Indeed, the morality of 600,000 dead, military rule, and continued demonization of a significant part of the culture.
Feldman is telling us, without specifically saying it, that all those supposedly racist Northern historians were right all along. Secession may have been illegal, but coercion certainly was. How is it that the South is evil here?
The other take away is that Feldman presents his argument as if there is now a precedent for the President of the United States to take the actions Lincoln took as long as the emergency is severe enough. In fairness he does call the theory of wartime necessity “doubtful”, and maybe that is legalese for repudiation.
The president who wantonly violated the Constitution is celebrated and even worshiped. This is why it can happen again.