Pushkin. Welcome to episode three of my podcast on the Broken Constitution, Lincoln, Slavery, and the Refounding of America. In episode one, I talked about how the Constitution of seventeen eighty seven and the way that it was a compromise between slave states and free states in order to preserve and enable the expansion of the Union. In episode two, I brought us into the breaking of that Constitution by the Confederacy and Abraham Lincoln's corresponding breaking of the Constitution as it was then understood, both by going to war to coerce the Southern States back into the Union, and then by suspending Habeas corpus unilaterally, even though that was a power reserve to Congress, and through that becoming a kind of a dictator, one who suspended the freedom of expression in the United States through the duration of the war, arresting ultimately many thousands of people and shutting down hundreds of newspapers. In today's episode, I want to turn to the most memorable, significant, and consequential breaking of the Constitution that Abraham Lincoln achieved, the one that had the effect of transforming not only the meaning of the Civil War, but transforming the Constitution itself in the most fundamental way, so much so that the Constitution of today is no longer the Constitution of seventeen eighty seven, but something new and different, the Constitution of Abraham Lincoln, and then ultimately the Constitution of the Reconstruction Amendments, the thirteenth, fourteenth, and fifteenth Amendments. To do that, we have to begin with a recognition of a fact that we've effectively supprest, and that is that when the Civil War began, Abraham Lincoln remained exactly as committed to the compromised Constitution and therefore to the preservation of slavery as he had been through the entirety of his political career up to that point. The evidence that indicates the depth of this comes from Abraham Lincoln's first inaugural address. Now you may be thinking to yourself, well, wait a minute, what was Lincoln's first inaugural address. His second inaugural address, which i'll talk about a bit later in this podcast, is part of the canon of American political and constitutional thought. When you visit the Lincoln Memorial, it's right up there on one of the walls, across from the Gettysburg Address. The other one of Lincoln's most famous speeches, But the first Inaugural Address is all but forgotten, and the reason for that is that it began in its first full power graph by quoting a statement that Lincoln had made in debating Stephen Douglas when he ran for the Senate in eighteen fifty eight, and in it Lincoln said, quote, 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. The reason for that was straightforward, Southern secession needed to be reversed. Lincoln saw his goal as recreating the Union. The Union had always existed on the basis of a compromise over slavery, and he had no idea of any possible mode of recreating the Union without recreating the compromise over slavery. His promise in the Inaugural Address to respect the institution of slavery was therefore a crucial part of his vision of how to restore the Union. This view continued through the first months of Lincoln's presidency. At the end of August of eighteen sixty one, John C. Fremont, who had been the eighteen fifty six Republican presidential candidate and whom Lincoln had made a general in Missouri, announced that he was freeing the slaves of all rebels found in his territory. This, in short, was pretty fundamentally similar to what would be Lincoln's active emancipation. More than a year later, Lincoln wrote to Fremont and told him, no, you cannot do this. I am requesting that you retract your emancipation order. Fremont said, I'm not going to do that. If you want the order reversed, you have to do it. So Lincoln fired Fremont and reversed the order himself. In a letter that Lincoln wrote to a friend just a few days later on September twenty one, eighteen sixty seven, he stood behind his decision regarding Fremont's emancipation order. The proclamation, he said, is and I quote, simply dictatorship. It assumes that the general may do anything he pleases, confiscate the lands, and free the slaves of loyal people as well as disloyal ones. In other words, Lincoln believed that for a general to use his war powers to free slaves was an act of dictatorship, and he was not using that term in the positive sense of the word. For Lincoln, dictatorship was wrong, and the Constitution did not authorize him or therefore the General's working for him to free slaves as a matter of military necessity. It took Lincoln more than a year for his views to evolve and change. In the book The Broken Constitution, I take the reader day by day, just about sometimes even minute by minute, through the process that Lincoln went through to shift his views from the view that it would be an active dictatorship to free slaves to the view that perhaps he ought to do so himself. To summarize it here, I would say that there were two major forces that push Lincoln in this direction. The first was a circumstantial one. He gradually realized that it would be difficult or impossible for him to win the war by creating a sufficient incentive for the Southern States to rejoin the Union voluntarily. As long as Lincoln thought that the Southern States might voluntarily rejoin, it was necessary to maintain the possibility of compromise, and that compromise, in turn required preserving slavery. But if it turned out that the Southern States were not going to compromise, We're not going to return voluntarily, then what followed from that was that it was at least possible to impose an outcome to the war on them. If that solution were therefore to be imposed by military force, Lincoln had the possibility at least of changing the situation with respect to the compromised Constitution as it existed before the war. The new constitution that would then have to emerge would no longer be based on a compromise. It would instead be based on a principle, and indeed on a moral principle, namely the moral principle of the end of slavery and the equality of African Americans. Lincoln did not deceive himself into thinking the Southern States would ever agree to this. This was an outcome they would have to be imposed by military force. The second element that contributed most fundamentally to Lincoln changing his views was the depth of his embrace of the idea that, through military necessity, he was authorized by the Constitution to do whatever it took to win the war. Here, his suspension of habeas corpus and his suspension of the free press were actually the groundwork for Lincoln's realization that if he could do that, he could do anything, and anything included breaking the Constitution as he had always understood it, and that included emancipating slaves. Remember that, all the way back early in his career, in eighteen thirty eight, in his Lyceum address which I mentioned in Episode one, Lincoln had said that what made a dictator a caesar or a Napoleon was the act of emancipating slaves or enslaving freemen. Gradually he had come to the view that that act, which was he said in eighteen thirty eight, a fundamental violation of the principles of the Constitution, was permissible to him in wartime, because in wartime, and under the circumstance senses of the broken Constitution, he could then further break the Constitution in order to win the war. Lincoln first introduced this idea to his colleagues in the cabinet on July twenty second of eighteen sixty two, a year and several months after he had assumed the presidency. At the time, he still hoped that there would be some way to introduce compensated emancipation money to be paid to those people who were not disloyal and still had their slaves taken. When he introduced the idea to his cabinet, the cabinet was so shocked that it essentially reacted by telling him that emancipation would be a terrible mistake. From this, Lincoln realized that he needed to do more to introduce the idea of emancipation, not only to his cabinet, but to the country, which he knew would hold similar views to those of the cabinet. He spent the rest of the summer and the fall of eighteen sixty two gradually introducing ideas associated with emancipation into the public eye. The way he did that, seen in our terms, is not necessarily very appealing. Here, Lincoln the politician was not acting as Lincoln the moralist. An exemplary and dramatic moment in Lincoln's efforts to acclimate the country to the possibility of emancipation came in August of eighteen sixty two, when Lincoln held a meeting with a five member delegation of African Americans in the White House. The men he invited were part of the city's educated black elite. One Edward Thomas, the chairman of the delegation, was a member of one of the city's black debating societies, a collector of fine art and rare coins, and the proud owner of a library of six hundred books, an enormous library for the time. The others had similar elite status. Lincoln brought them into the White House, and instead of asking them what their views were about the possibility of emancipation, or how he should do things going forward, or really listening to them at all, Lincoln talked at them. And what he told them was nothing short of astonishing to our ears. What Lincoln told them had two parts. The first was that the long term solution to the problem of slavery was not merely to free black people, but for black people to voluntary leave the United States and be resettled somewhere else, either in Africa or in Central America, in circumstances where they would be far from white people and where the hatred that subsisted between the two races, according to Lincoln, would be resolved by effectively a kind of divorce. The delegation of African Americans listened with a stony silence, like essentially all African Americans, at the time and the overwhelming majority, since they had no interest in leaving the United States, they had no interest in participating in a plan to go to Liberia or somewhere else. That view had been a fantasy of white, anti slavery Americans of a certain kind all the way since the beginning of the nineteenth century. The idea, which was called colonization was the policy of a group of people who formed the American Colonization Society, a group of which James Monroe had been president and of which Henry Clay, the Great wig compromiser and Lincoln's idol, had been another leader. At no time was this view realistic, and at no time that it enjoys support from any number of African Americans. But certainly by eighteen sixty two the view was nothing more than a preposterous and frankly offensive fantasy. The reason Lincoln was talking to this group of African Americans about colonization was not that he expected them to listen to him. In fact, he wasn't really talking to that group at all. Lincoln was talking to white America, and he was trying to set up an argument that even if emancipation should occur, there was no need for white Americans to worry about any possibility of integration or living alongside African Americans towards whom he knew white people harbored intense racial prejudice. He was, in short, suggesting that it would be possible to emancipate without creating a race problem in the United States by sending all black people out of the country. The other thing that Lincoln told the assembled group of African American dignitaries was if it's possible. Even more shocking, here's what he said, but for your race among us, there could not be war, although many men engaged on either side do not care for you one way or the other. Nevertheless, I repeat, without the institution of slavery and the colored race as a basis, the war could not have an existence. That quotation is so astonishing that it may take a moment to explain it. In essence, what Lincoln was telling the black people in front of him was that the war was their fault. Instead of blaming the war on southern slavery, or Northern hypocrisy, or the inability of the compromise between North and South over slavery to subsist, Lincoln was saying that black people were themselves the but for cause of the war, and were therefore in some sense responsible for it. If you think that I'm making that up, listen to what Frederick Douglas said when he heard the reports of that conversation. Lincoln was showing all his inconsistencies, Douglas wrote, his pride of race and blood, his contempt for negroes, and his canting hypocrisy. How an honest man could creep into such a character as that implied by this address, we are not required to show. Douglas went on. He said that Lincoln was like a horse thief or a highway robber who was blaming his crime on the horse or the traveler's purse. No, mister President, Douglas said, it is not the innocent horse that makes the horse thief, not the traveler's purse that makes the highway robber. And it is not the presence of the negro that causes this foul and unnatural war, but the cruel and brutal cupidity of those who wish to possess horses, money, and negroes by means of theft, robbery, and rebellion. What was behind Lincoln's conversation with the African American delegation, however, was not to make a reasonable point. He was instead again trying to prepare the ground for the possibility of emancipation by convincing white Americans that he had no particular solicitude or care for black people. He was trying to make the argument that the reason to end slavery was to end the war and to end the controversy and conflict between Northern whites and Southern whites about the question of race. Did Lincoln mean everything he said? This is a question that still engages historians, and one again that I discuss in a great deal of detail in the book The Broken Constitution. I would say that on the whole my answer is yes. Listen to what Lincoln said in an open letter to Horace Greeley, the editor of the New York Tribune, just a week after he had spoken to the group of African Americans in his office. My paramount object in this struggle, Lincoln said, is to save the Union, and is not either to save or destroy slavery. His emphasis on those words, if I could save the Union without freeing any slave, I would do it. And if I could save it by freeing all the slaves, I would do it. And if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union. And what I forbear, I forbear because I do not believe it would help to save the Union. There in a nutshell was Lincoln's public position about emancipation. On his way to September of eighteen sixty two, when he announced a draft of the Emancipation Proclamation, Lincoln was saying, in words too simple to mistake, that he did not want to base the decision to a man incipate at that moment on the immorality of slavery, but rather on the necessity of saving the Union. No doubt, Lincoln felt it necessary to speak this way in order to convince white Americans of the plausibility of emancipation, and also because he knew that he was breaking a constitutional compromise that had always been based on slavery. Nevertheless, if Lincoln had wanted to speak directly about the immorality of slavery itself as part of his act of emancipation, he could have done so. The Emancipation Proclamation evolved in the course of three versions of the document. The first was the one that Lincoln suggested to his cabinet in the summer of eighteen sixty two. The second was the preliminary declaration that Lincoln made public in September. The third and final one was the formal Emancipation Proclamation, into effect on January first of eighteen sixty three. In none of these did Lincoln expressly say that the point of emancipation was to end a moral wrong. Indeed, these documents were written in fairly legalistic tones. Karl Marx, a contemporary of Lincoln's, as we sometimes forget, who watched events in the United States with great interest, did consider the Emancipation Proclamation to be quote, the most important document in American history since the establishment of the Union, tantamount to the tearing up of the old American Constitution. Yet at the same time, Marx derided the language of the proclamation as devoid of morality. He said it had been intentionally drafted to sound like, quote, an ordinary summons sent by one lawyer to another. That was true of the body of the proclamation. The only place where Lincoln hinted, however, in the emancipation Proclamation at some potential moral purpose was in its final paragraph. There he wrote, and upon this act, sincerely believed to be an act of justice warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God. This paragraph did include a repetition of Lincoln's insistence that his act was justified by the Constitution because of the military necessity of doing so. In other words, that the reason emancipation was permissible under the Constitution, despite it being a breaking of the Constitution as it had always been understood before, was that there was a military necessity to do so. He needed to emancipate the slaves in order to win the war. And yet if that were the only reason, there would be no significant basis for Lincoln to invoke the judgment of mankind, much less the gracious favor of God. By thinking of the judgment of mankind, Lincoln was referring back to the Declaration of Independence, which had also appealed to the opinions of mankind and referred to a creator who endowed men with inalienable rights, including the right to liberty. Lincoln was suggesting to an international audience, not to the US audience, that there was value in the freeing of slaves. Similarly, by invoking God, Lincoln was hinting, but only hinting, that in the eyes of the ultimate judge of morality, there was good reason to free enslaved African Americans. By emancipating African American slaves, Lincoln fundamentally changed the possible outcomes of the war, and in the process, he fundamentally transformed the meaning of the Constitution. That was because by doing so, Lincoln blocked once and for all, any possibility of return to a constitution based on compromise. The compromise constitution had always been a compromise based on slavery. By announcing that enslaved people in the South would not be returned to their owners when the war was over, by announcing that there would not be slavery in the South when the war was over, Lincoln was guaranteeing that there would not be the possibility of future compromise, at least if he were re elected president. He knew that he might lose the presidential election in eighteen sixty four, and if that happened, He realized a new president might reoffer some version of a compromise to the South, but as long as he was president, he was insisting there would not be a compromise by this Emancipation Act. Therefore, Lincoln broke any possibility of return to the Constitution of seventeen eighty seven, as it had been shored up and rebuilt by a series of quasi constitutional compromises in the year before the war. He was taking slavery off the table. In so doing, Lincoln was also opening up a new possibility, one we are familiar with today, but that had not existed before. That was the idea of the Constitution as a constitution genuinely in keeping with morality, a moral constitution that could itself be considered a higher law. The Constitution had never been considered a moral document in the years before the Civil War because it entailed a compromise with slavery. Even those who like Lincoln believed there was a moral duty to follow the Constitution believed that that flowed from a promise that had been made to follow it, not from the morality of the Constitution itself, which was a compromise with immorality. But if the Constitution would no longer be a compromise over slavery. Then it could be a moral document. It could be a moral document based on the principle of liberty for all, and by implication, also based on the principle of equality. Liberty and equality were moral concepts. Compromise was a concept that was at best a moral and at worst immoral to the extent it entailed an agreement to preserve slavery. The Gettysburg Address is the archetypal moment when Lincoln introduced this idea to the United States. He gave it on November nineteenth, eighteen sixty three, and already in its first sentence, Lincoln spoke of a new nation conceived in liberty and dedicated to the proposition that all men are created equal. The nation was new because the Constitution of seventeen eighty seven was gone. This new nation was conceived in liberty, which could never be said of the Constitution of seventeen eighty seven because it entailed a compromise over liberty by assuring the continuation of the enslavement of African Americans and the core proposition that all men are created equal, though it existed in the Declaration of Independence, had not been morally present in the Constitution because it had explicitly excluded people of color. In the course of the Gettysburg Address, Lincoln's introduction of the idea of morality started to take on biblical overtones. You can hear that in some of the language of the address four score and seven years ago a formulation hinting at the Bible shall not perish from the earth more language from the Bible. But Lincoln's religious description of the meaning of the end of slavery came most famously in his second inaugural address, which he gave on March fourth of eighteen sixty five. In that famous address, Lincoln offered nothing less than a theology of slavery and what it meant in America. According to that theology, slavery was an offense against God, an original sin, and that sin had been purged or atoned only through the violence and bloodshed of the Civil War. He said, if we shall suppose that American slavery is one of those offenses which, in the providence of God must needs come, but which having continued through his appointed time, he now wills to remove, and that he gives to both north and South. This terrible war, as the woe due to those by whom the offense came, shall we scern therein any departure from those divine attributes which the believers in a living God always ascribed to him. Lincoln was saying that the war had been inevitable, inevitable because of the slavery compromise, which itself was a sin. Thus, he said, the war might continue until all the wealth piled by the bondman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword. The blood of slavery would be repaid by the blood of the Northern and Southern dead. Through this atonement, an atonement that would have been familiar to Americans of the time as the model of Christ's sacrifice of his own blood to atone for original sin, the United States could be healed. The result would be a new Constitution that stood in relationship to the Old Constitution, the way the New Testament stood in relationship to the Old. Lots of scholars have talked about the difficulty that Lincoln faced in his personal life. The death of his son and as well the pain of seeing so many human deaths on both sides of the war. But the truth is that the most obvious explanation for Lincoln's turn to religious language at the end of the war has to do with his turn to the idea that the Constitution could be remade into something newly moral. For nineteenth century Americans, the fundamental language of morality was the language of religion. Thus, by the emancipation of slaves, Lincoln changed the meaning of the war itself from being a war for union to being a war to end slavery. No longer would union be grounded and compromised. Instead, union would be grounded in a coercive military solution that ended slavery and assumed a constitution that would ultimately be based on equality. Lincoln lived to see the ratification of the Thirteenth Amendment, which ended slavery. He did not live to see the ratification of the Fourteenth Amendment, with its guarantee of equal protection, nor the fifteenth with its enfranchisement of African Americans. But that did not matter from the standpoint of the transformative effect that Lincoln's actions had had on the Constitution. Once slavery was ended, which Lincoln had done even without a constitutional amendment, at least with respect to the South. He had fundamentally transformed the constitutional order into something new. He had refounded America on new principles, moral prin principles of freedom, and principles of equality. His historical contribution would be permanent. Before I end this episode, though, I want to point out that although nothing could be neater than to end the story of Lincoln and the Broken Constitution with its transformation into a new moral constitution via the thirteenth, fourteenth, and fifteenth Amendments, the sad truth is that the planned effort to remake the Constitution into something moral did not ultimately go as Lincoln had hoped, And indeed, some of the reason for that may simply have to do with the fact that neither Lincoln nor anyone else had a detailed vision of how a constitution that was based on moral principles of equality and freedom could actually work in practice. As you may recall from Episode one, General Winfield's Scott had told Lincoln before the war began that if the North did manage to conquer the South, it would have to rule the South the way an imperial power ruled unruly colonies. It would have to have an army of occupation, and it would have to force its own control and power onto the South. When field Scott thought that would be very difficult or impossible to do, as it happened, that is exactly what the North had to do when the war ended. Reconstruction is the name for the military occupation and the effort of social transformation that was initially undertaken by the North, and that was then co participated in by freed African Americans in the South who nobly and by their own efforts, undertook to enfranchise themselves, to participate in politics and to remake the society in which they lived. Andrew Johnson, Lincoln's vice president, was very skeptical of Reconstruction from the start and tried hard not to implement its provisions. That, in fact, was one of the reasons that he was ultimately impeached, though not convicted by the Senate. Johnson, however, was replaced ultimately by Ulysses S. Grant, and Grant did much more than Johnson had done to work with the Republican Congress to impose Reconstruction on the South. The South, however, and by that I mean, the White South resisted with everything that it had. It fought a military insurgency characterized by paramilitary guerrilla groups like the Ku Klux Klan. White Southerners fought hard to resist the idea of African American equality and enfranchisement in the social sphere, in the economic sphere, and in the political sphere, and ultimately, over the course of the first half of the eighteen seventies, white Northerners lost the political moment to keep reconstruction going. The analogies to American wars in Afghanistan and Iraq are actually strong. The United States may imagine that it can transform a society entirely in the course of a military occupation, but when it turns out to be difficult, expensive, and time consuming, and when it turns out that many local people resist transformation, eventually the United States is capable of running out of steam on some level. That is the best account of how Reconstruction ultimately failed. It wasn't that Southern African Americans gave up their efforts to the contrary. They never stopped. It was that white Northerners lost the political will and the incentive to continue to try to impose social transformation, economic transformation, and political transformation on white Southerners. The result was the tragedy of what is sometimes called the Compromise of eighteen seventy six or the Great Betrayal. This was a process that emerged from the disputed eighteen seventy six constitutional election, which produced a special commission and a set of agreements that effectively embraced the reality of the collapse of Reconstruction. To oversimplify significantly, the Republican Party, speaking on behalf of northern whites, reached a compromise with the Democratic Party, which incorporated southern whites, to end Reconstruction and to allow the re emergence of a system of white domination in the South, a system based on segregation and disenfranchisement. To get there, the Supreme Court had to bless and validate laws that effectively repudiated the Fourteenth and Fifteenth Amendments. Segregation the principle of separate but equal will violated the Fourteenth Amendment, but the Supreme Court pretended otherwise in the tragically awful case of Plessy v. Ferguson. Similarly, laws designed to block African Americans from voting were systematically upheld by the Supreme Court. Lincoln's promise of a moral Constitution was betrayed, because although the Moral Constitution remained on paper, it was effectively a dead letter until the Civil Rights movement and Brown against the Board of Education. What happened after the Supreme Court repudiated the idea of separate but equal in the Brown versus. The Board decision in nineteen fifty four was the beginning of a process of constitutional redemption. The redemption here was not redemption of the original Constitution of seventeen eighty seven, but of Lincoln's Moral Constitution, the constitution embodied in their reconstruction amendments. The Supreme Court itself played a role an important role by saying that separate could never be equal, but the primary role was played by the Civil rights movement, by African Americans, who, in the decade following Brown versus. Board of Education, engaged in civil disobedience, in sit ins, in nonviolent resistance, and in the whole series of dramatic and heroic undertakings that ultimately led Congress to adopt the Civil Rights Act of nineteen sixty four and the Voting Rights Act of nineteen sixty five. In this process, Martin Luther King Junior emerged as in a sense, the second Lincoln, someone who stood from the moral Constitution, not from the standpoint in this case of a government itself, but from the standpoint of the people, and in particular of African Americans, who had been oppressed. The institution of morality and equality was therefore redeemed not by the conferral of a decision from above, like Lincoln the dictator, but rather by the actions of the people who were entitled to the very rights that they were guaranteed under that constitutional order. It was no coincidence that the iconic moment of Martin Luther King's career took place at the March on Washington. Standing in front of the Lincoln memorial. King was becoming a second Lincoln, and because ultimately King was assassinated just as Lincoln had been, the two men became linked as martyrs of the new and moral Constitution. King's explicitly religious identity as a minister played an important role in solidifying and expanding Lincoln's theology of the Civil War. The blood of the Civil War had atoned for original sin, but it was the efforts of African Americans and King's own sacrifice that redeemed Lincoln's Constitution from the betrayal it had undergone in the years after the abandonment of reconstruction. Today, of course, we know that that redeemed Constitution, with its moral principles of equality and liberty, is not perfectly achieved. Everyone on the American political spectrum today embraces in principle Lincoln's Constitution. Everyone therefore should recognize today that we do not have the Constitution of seventeen eighty seven, but we do have the constitution that Abraham Lincoln brought into existence with emancipation on January first, eighteen sixty three. At the same time, we need to recognize that a written constitution embedding the principles of a quality and liberty does not on its own bring those moral principles into existence. We still have persistent inequality in the United States, including inequality before the law of the kind that the moral constitution prohibits. The truth is that a moral constitution, like all constitutions, is not an end state. It's a promise of an ongoing effort. Through our moral constitution, we define our national project, but we can never fully achieve it. Lincoln's ultimate legacy, then is not the accomplishment of a genuinely moral constitution. It is rather his act of breaking the compromise constitution and the hope and the promise of a moral constitution that will always be in the process of being redeemed. If you enjoyed this episode of The Broken Constitution podcast, I can tell you with a great deal of certainty that you're also going to enjoy the book itself, The Broken Constitution, Lincoln, Slavery and the Refounding of America, will be out now. Please enjoy reading it, and if you have thoughts or ideas, I hope you will write to me about what you think. The point of this book is to create a conversation, and you, the listener of this podcast, are one of the people from whom I wish to hear. The Broken Constitution was produced by Nathan Sims and Quick and Dirty Tips, a proud part of McMillan Publishers Home far Oar Straus and Drew, who are publishing my book

Pushkin. Welcome to episode three of my podcast on the Broken Constitution, Lincoln, Slavery, and the Refounding of America. In episode one, I talked about how the Constitution of seventeen eighty seven and the way that it was a compromise between slave states and free states in order to preserve and enable the expansion of the Union. In episode two, I brought us into the breaking of that Constitution by the Confederacy and Abraham Lincoln's corresponding breaking of the Constitution as it was then understood, both by going to war to coerce the Southern States back into the Union, and then by suspending Habeas corpus unilaterally, even though that was a power reserve to Congress, and through that becoming a kind of a dictator, one who suspended the freedom of expression in the United States through the duration of the war, arresting ultimately many thousands of people and shutting down hundreds of newspapers. In today's episode, I want to turn to the most memorable, significant, and consequential breaking of the Constitution that Abraham Lincoln achieved, the one that had the effect of transforming not only the meaning of the Civil War, but transforming the Constitution itself in the most fundamental way, so much so that the Constitution of today is no longer the Constitution of seventeen eighty seven, but something new and different, the Constitution of Abraham Lincoln, and then ultimately the Constitution of the Reconstruction Amendments, the thirteenth, fourteenth, and fifteenth Amendments. To do that, we have to begin with a recognition of a fact that we've effectively supprest, and that is that when the Civil War began, Abraham Lincoln remained exactly as committed to the compromised Constitution and therefore to the preservation of slavery as he had been through the entirety of his political career up to that point. The evidence that indicates the depth of this comes from Abraham Lincoln's first inaugural address. Now you may be thinking to yourself, well, wait a minute, what was Lincoln's first inaugural address. His second inaugural address, which i'll talk about a bit later in this podcast, is part of the canon of American political and constitutional thought. When you visit the Lincoln Memorial, it's right up there on one of the walls, across from the Gettysburg Address. The other one of Lincoln's most famous speeches, But the first Inaugural Address is all but forgotten, and the reason for that is that it began in its first full power graph by quoting a statement that Lincoln had made in debating Stephen Douglas when he ran for the Senate in eighteen fifty eight, and in it Lincoln said, quote, 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. The reason for that was straightforward, Southern secession needed to be reversed. Lincoln saw his goal as recreating the Union. The Union had always existed on the basis of a compromise over slavery, and he had no idea of any possible mode of recreating the Union without recreating the compromise over slavery. His promise in the Inaugural Address to respect the institution of slavery was therefore a crucial part of his vision of how to restore the Union. This view continued through the first months of Lincoln's presidency. At the end of August of eighteen sixty one, John C. Fremont, who had been the eighteen fifty six Republican presidential candidate and whom Lincoln had made a general in Missouri, announced that he was freeing the slaves of all rebels found in his territory. This, in short, was pretty fundamentally similar to what would be Lincoln's active emancipation. More than a year later, Lincoln wrote to Fremont and told him, no, you cannot do this. I am requesting that you retract your emancipation order. Fremont said, I'm not going to do that. If you want the order reversed, you have to do it. So Lincoln fired Fremont and reversed the order himself. In a letter that Lincoln wrote to a friend just a few days later on September twenty one, eighteen sixty seven, he stood behind his decision regarding Fremont's emancipation order. The proclamation, he said, is and I quote, simply dictatorship. It assumes that the general may do anything he pleases, confiscate the lands, and free the slaves of loyal people as well as disloyal ones. In other words, Lincoln believed that for a general to use his war powers to free slaves was an act of dictatorship, and he was not using that term in the positive sense of the word. For Lincoln, dictatorship was wrong, and the Constitution did not authorize him or therefore the General's working for him to free slaves as a matter of military necessity. It took Lincoln more than a year for his views to evolve and change. In the book The Broken Constitution, I take the reader day by day, just about sometimes even minute by minute, through the process that Lincoln went through to shift his views from the view that it would be an active dictatorship to free slaves to the view that perhaps he ought to do so himself. To summarize it here, I would say that there were two major forces that push Lincoln in this direction. The first was a circumstantial one. He gradually realized that it would be difficult or impossible for him to win the war by creating a sufficient incentive for the Southern States to rejoin the Union voluntarily. As long as Lincoln thought that the Southern States might voluntarily rejoin, it was necessary to maintain the possibility of compromise, and that compromise, in turn required preserving slavery. But if it turned out that the Southern States were not going to compromise, We're not going to return voluntarily, then what followed from that was that it was at least possible to impose an outcome to the war on them. If that solution were therefore to be imposed by military force, Lincoln had the possibility at least of changing the situation with respect to the compromised Constitution as it existed before the war. The new constitution that would then have to emerge would no longer be based on a compromise. It would instead be based on a principle, and indeed on a moral principle, namely the moral principle of the end of slavery and the equality of African Americans. Lincoln did not deceive himself into thinking the Southern States would ever agree to this. This was an outcome they would have to be imposed by military force. The second element that contributed most fundamentally to Lincoln changing his views was the depth of his embrace of the idea that, through military necessity, he was authorized by the Constitution to do whatever it took to win the war. Here, his suspension of habeas corpus and his suspension of the free press were actually the groundwork for Lincoln's realization that if he could do that, he could do anything, and anything included breaking the Constitution as he had always understood it, and that included emancipating slaves. Remember that, all the way back early in his career, in eighteen thirty eight, in his Lyceum address which I mentioned in Episode one, Lincoln had said that what made a dictator a caesar or a Napoleon was the act of emancipating slaves or enslaving freemen. Gradually he had come to the view that that act, which was he said in eighteen thirty eight, a fundamental violation of the principles of the Constitution, was permissible to him in wartime, because in wartime, and under the circumstance senses of the broken Constitution, he could then further break the Constitution in order to win the war. Lincoln first introduced this idea to his colleagues in the cabinet on July twenty second of eighteen sixty two, a year and several months after he had assumed the presidency. At the time, he still hoped that there would be some way to introduce compensated emancipation money to be paid to those people who were not disloyal and still had their slaves taken. When he introduced the idea to his cabinet, the cabinet was so shocked that it essentially reacted by telling him that emancipation would be a terrible mistake. From this, Lincoln realized that he needed to do more to introduce the idea of emancipation, not only to his cabinet, but to the country, which he knew would hold similar views to those of the cabinet. He spent the rest of the summer and the fall of eighteen sixty two gradually introducing ideas associated with emancipation into the public eye. The way he did that, seen in our terms, is not necessarily very appealing. Here, Lincoln the politician was not acting as Lincoln the moralist. An exemplary and dramatic moment in Lincoln's efforts to acclimate the country to the possibility of emancipation came in August of eighteen sixty two, when Lincoln held a meeting with a five member delegation of African Americans in the White House. The men he invited were part of the city's educated black elite. One Edward Thomas, the chairman of the delegation, was a member of one of the city's black debating societies, a collector of fine art and rare coins, and the proud owner of a library of six hundred books, an enormous library for the time. The others had similar elite status. Lincoln brought them into the White House, and instead of asking them what their views were about the possibility of emancipation, or how he should do things going forward, or really listening to them at all, Lincoln talked at them. And what he told them was nothing short of astonishing to our ears. What Lincoln told them had two parts. The first was that the long term solution to the problem of slavery was not merely to free black people, but for black people to voluntary leave the United States and be resettled somewhere else, either in Africa or in Central America, in circumstances where they would be far from white people and where the hatred that subsisted between the two races, according to Lincoln, would be resolved by effectively a kind of divorce. The delegation of African Americans listened with a stony silence, like essentially all African Americans, at the time and the overwhelming majority, since they had no interest in leaving the United States, they had no interest in participating in a plan to go to Liberia or somewhere else. That view had been a fantasy of white, anti slavery Americans of a certain kind all the way since the beginning of the nineteenth century. The idea, which was called colonization was the policy of a group of people who formed the American Colonization Society, a group of which James Monroe had been president and of which Henry Clay, the Great wig compromiser and Lincoln's idol, had been another leader. At no time was this view realistic, and at no time that it enjoys support from any number of African Americans. But certainly by eighteen sixty two the view was nothing more than a preposterous and frankly offensive fantasy. The reason Lincoln was talking to this group of African Americans about colonization was not that he expected them to listen to him. In fact, he wasn't really talking to that group at all. Lincoln was talking to white America, and he was trying to set up an argument that even if emancipation should occur, there was no need for white Americans to worry about any possibility of integration or living alongside African Americans towards whom he knew white people harbored intense racial prejudice. He was, in short, suggesting that it would be possible to emancipate without creating a race problem in the United States by sending all black people out of the country. The other thing that Lincoln told the assembled group of African American dignitaries was if it's possible. Even more shocking, here's what he said, but for your race among us, there could not be war, although many men engaged on either side do not care for you one way or the other. Nevertheless, I repeat, without the institution of slavery and the colored race as a basis, the war could not have an existence. That quotation is so astonishing that it may take a moment to explain it. In essence, what Lincoln was telling the black people in front of him was that the war was their fault. Instead of blaming the war on southern slavery, or Northern hypocrisy, or the inability of the compromise between North and South over slavery to subsist, Lincoln was saying that black people were themselves the but for cause of the war, and were therefore in some sense responsible for it. If you think that I'm making that up, listen to what Frederick Douglas said when he heard the reports of that conversation. Lincoln was showing all his inconsistencies, Douglas wrote, his pride of race and blood, his contempt for negroes, and his canting hypocrisy. How an honest man could creep into such a character as that implied by this address, we are not required to show. Douglas went on. He said that Lincoln was like a horse thief or a highway robber who was blaming his crime on the horse or the traveler's purse. No, mister President, Douglas said, it is not the innocent horse that makes the horse thief, not the traveler's purse that makes the highway robber. And it is not the presence of the negro that causes this foul and unnatural war, but the cruel and brutal cupidity of those who wish to possess horses, money, and negroes by means of theft, robbery, and rebellion. What was behind Lincoln's conversation with the African American delegation, however, was not to make a reasonable point. He was instead again trying to prepare the ground for the possibility of emancipation by convincing white Americans that he had no particular solicitude or care for black people. He was trying to make the argument that the reason to end slavery was to end the war and to end the controversy and conflict between Northern whites and Southern whites about the question of race. Did Lincoln mean everything he said? This is a question that still engages historians, and one again that I discuss in a great deal of detail in the book The Broken Constitution. I would say that on the whole my answer is yes. Listen to what Lincoln said in an open letter to Horace Greeley, the editor of the New York Tribune, just a week after he had spoken to the group of African Americans in his office. My paramount object in this struggle, Lincoln said, is to save the Union, and is not either to save or destroy slavery. His emphasis on those words, if I could save the Union without freeing any slave, I would do it. And if I could save it by freeing all the slaves, I would do it. And if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union. And what I forbear, I forbear because I do not believe it would help to save the Union. There in a nutshell was Lincoln's public position about emancipation. On his way to September of eighteen sixty two, when he announced a draft of the Emancipation Proclamation, Lincoln was saying, in words too simple to mistake, that he did not want to base the decision to a man incipate at that moment on the immorality of slavery, but rather on the necessity of saving the Union. No doubt, Lincoln felt it necessary to speak this way in order to convince white Americans of the plausibility of emancipation, and also because he knew that he was breaking a constitutional compromise that had always been based on slavery. Nevertheless, if Lincoln had wanted to speak directly about the immorality of slavery itself as part of his act of emancipation, he could have done so. The Emancipation Proclamation evolved in the course of three versions of the document. The first was the one that Lincoln suggested to his cabinet in the summer of eighteen sixty two. The second was the preliminary declaration that Lincoln made public in September. The third and final one was the formal Emancipation Proclamation, into effect on January first of eighteen sixty three. In none of these did Lincoln expressly say that the point of emancipation was to end a moral wrong. Indeed, these documents were written in fairly legalistic tones. Karl Marx, a contemporary of Lincoln's, as we sometimes forget, who watched events in the United States with great interest, did consider the Emancipation Proclamation to be quote, the most important document in American history since the establishment of the Union, tantamount to the tearing up of the old American Constitution. Yet at the same time, Marx derided the language of the proclamation as devoid of morality. He said it had been intentionally drafted to sound like, quote, an ordinary summons sent by one lawyer to another. That was true of the body of the proclamation. The only place where Lincoln hinted, however, in the emancipation Proclamation at some potential moral purpose was in its final paragraph. There he wrote, and upon this act, sincerely believed to be an act of justice warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God. This paragraph did include a repetition of Lincoln's insistence that his act was justified by the Constitution because of the military necessity of doing so. In other words, that the reason emancipation was permissible under the Constitution, despite it being a breaking of the Constitution as it had always been understood before, was that there was a military necessity to do so. He needed to emancipate the slaves in order to win the war. And yet if that were the only reason, there would be no significant basis for Lincoln to invoke the judgment of mankind, much less the gracious favor of God. By thinking of the judgment of mankind, Lincoln was referring back to the Declaration of Independence, which had also appealed to the opinions of mankind and referred to a creator who endowed men with inalienable rights, including the right to liberty. Lincoln was suggesting to an international audience, not to the US audience, that there was value in the freeing of slaves. Similarly, by invoking God, Lincoln was hinting, but only hinting, that in the eyes of the ultimate judge of morality, there was good reason to free enslaved African Americans. By emancipating African American slaves, Lincoln fundamentally changed the possible outcomes of the war, and in the process, he fundamentally transformed the meaning of the Constitution. That was because by doing so, Lincoln blocked once and for all, any possibility of return to a constitution based on compromise. The compromise constitution had always been a compromise based on slavery. By announcing that enslaved people in the South would not be returned to their owners when the war was over, by announcing that there would not be slavery in the South when the war was over, Lincoln was guaranteeing that there would not be the possibility of future compromise, at least if he were re elected president. He knew that he might lose the presidential election in eighteen sixty four, and if that happened, He realized a new president might reoffer some version of a compromise to the South, but as long as he was president, he was insisting there would not be a compromise by this Emancipation Act. Therefore, Lincoln broke any possibility of return to the Constitution of seventeen eighty seven, as it had been shored up and rebuilt by a series of quasi constitutional compromises in the year before the war. He was taking slavery off the table. In so doing, Lincoln was also opening up a new possibility, one we are familiar with today, but that had not existed before. That was the idea of the Constitution as a constitution genuinely in keeping with morality, a moral constitution that could itself be considered a higher law. The Constitution had never been considered a moral document in the years before the Civil War because it entailed a compromise with slavery. Even those who like Lincoln believed there was a moral duty to follow the Constitution believed that that flowed from a promise that had been made to follow it, not from the morality of the Constitution itself, which was a compromise with immorality. But if the Constitution would no longer be a compromise over slavery. Then it could be a moral document. It could be a moral document based on the principle of liberty for all, and by implication, also based on the principle of equality. Liberty and equality were moral concepts. Compromise was a concept that was at best a moral and at worst immoral to the extent it entailed an agreement to preserve slavery. The Gettysburg Address is the archetypal moment when Lincoln introduced this idea to the United States. He gave it on November nineteenth, eighteen sixty three, and already in its first sentence, Lincoln spoke of a new nation conceived in liberty and dedicated to the proposition that all men are created equal. The nation was new because the Constitution of seventeen eighty seven was gone. This new nation was conceived in liberty, which could never be said of the Constitution of seventeen eighty seven because it entailed a compromise over liberty by assuring the continuation of the enslavement of African Americans and the core proposition that all men are created equal, though it existed in the Declaration of Independence, had not been morally present in the Constitution because it had explicitly excluded people of color. In the course of the Gettysburg Address, Lincoln's introduction of the idea of morality started to take on biblical overtones. You can hear that in some of the language of the address four score and seven years ago a formulation hinting at the Bible shall not perish from the earth more language from the Bible. But Lincoln's religious description of the meaning of the end of slavery came most famously in his second inaugural address, which he gave on March fourth of eighteen sixty five. In that famous address, Lincoln offered nothing less than a theology of slavery and what it meant in America. According to that theology, slavery was an offense against God, an original sin, and that sin had been purged or atoned only through the violence and bloodshed of the Civil War. He said, if we shall suppose that American slavery is one of those offenses which, in the providence of God must needs come, but which having continued through his appointed time, he now wills to remove, and that he gives to both north and South. This terrible war, as the woe due to those by whom the offense came, shall we scern therein any departure from those divine attributes which the believers in a living God always ascribed to him. Lincoln was saying that the war had been inevitable, inevitable because of the slavery compromise, which itself was a sin. Thus, he said, the war might continue until all the wealth piled by the bondman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword. The blood of slavery would be repaid by the blood of the Northern and Southern dead. Through this atonement, an atonement that would have been familiar to Americans of the time as the model of Christ's sacrifice of his own blood to atone for original sin, the United States could be healed. The result would be a new Constitution that stood in relationship to the Old Constitution, the way the New Testament stood in relationship to the Old. Lots of scholars have talked about the difficulty that Lincoln faced in his personal life. The death of his son and as well the pain of seeing so many human deaths on both sides of the war. But the truth is that the most obvious explanation for Lincoln's turn to religious language at the end of the war has to do with his turn to the idea that the Constitution could be remade into something newly moral. For nineteenth century Americans, the fundamental language of morality was the language of religion. Thus, by the emancipation of slaves, Lincoln changed the meaning of the war itself from being a war for union to being a war to end slavery. No longer would union be grounded and compromised. Instead, union would be grounded in a coercive military solution that ended slavery and assumed a constitution that would ultimately be based on equality. Lincoln lived to see the ratification of the Thirteenth Amendment, which ended slavery. He did not live to see the ratification of the Fourteenth Amendment, with its guarantee of equal protection, nor the fifteenth with its enfranchisement of African Americans. But that did not matter from the standpoint of the transformative effect that Lincoln's actions had had on the Constitution. Once slavery was ended, which Lincoln had done even without a constitutional amendment, at least with respect to the South. He had fundamentally transformed the constitutional order into something new. He had refounded America on new principles, moral prin principles of freedom, and principles of equality. His historical contribution would be permanent. Before I end this episode, though, I want to point out that although nothing could be neater than to end the story of Lincoln and the Broken Constitution with its transformation into a new moral constitution via the thirteenth, fourteenth, and fifteenth Amendments, the sad truth is that the planned effort to remake the Constitution into something moral did not ultimately go as Lincoln had hoped, And indeed, some of the reason for that may simply have to do with the fact that neither Lincoln nor anyone else had a detailed vision of how a constitution that was based on moral principles of equality and freedom could actually work in practice. As you may recall from Episode one, General Winfield's Scott had told Lincoln before the war began that if the North did manage to conquer the South, it would have to rule the South the way an imperial power ruled unruly colonies. It would have to have an army of occupation, and it would have to force its own control and power onto the South. When field Scott thought that would be very difficult or impossible to do, as it happened, that is exactly what the North had to do when the war ended. Reconstruction is the name for the military occupation and the effort of social transformation that was initially undertaken by the North, and that was then co participated in by freed African Americans in the South who nobly and by their own efforts, undertook to enfranchise themselves, to participate in politics and to remake the society in which they lived. Andrew Johnson, Lincoln's vice president, was very skeptical of Reconstruction from the start and tried hard not to implement its provisions. That, in fact, was one of the reasons that he was ultimately impeached, though not convicted by the Senate. Johnson, however, was replaced ultimately by Ulysses S. Grant, and Grant did much more than Johnson had done to work with the Republican Congress to impose Reconstruction on the South. The South, however, and by that I mean, the White South resisted with everything that it had. It fought a military insurgency characterized by paramilitary guerrilla groups like the Ku Klux Klan. White Southerners fought hard to resist the idea of African American equality and enfranchisement in the social sphere, in the economic sphere, and in the political sphere, and ultimately, over the course of the first half of the eighteen seventies, white Northerners lost the political moment to keep reconstruction going. The analogies to American wars in Afghanistan and Iraq are actually strong. The United States may imagine that it can transform a society entirely in the course of a military occupation, but when it turns out to be difficult, expensive, and time consuming, and when it turns out that many local people resist transformation, eventually the United States is capable of running out of steam on some level. That is the best account of how Reconstruction ultimately failed. It wasn't that Southern African Americans gave up their efforts to the contrary. They never stopped. It was that white Northerners lost the political will and the incentive to continue to try to impose social transformation, economic transformation, and political transformation on white Southerners. The result was the tragedy of what is sometimes called the Compromise of eighteen seventy six or the Great Betrayal. This was a process that emerged from the disputed eighteen seventy six constitutional election, which produced a special commission and a set of agreements that effectively embraced the reality of the collapse of Reconstruction. To oversimplify significantly, the Republican Party, speaking on behalf of northern whites, reached a compromise with the Democratic Party, which incorporated southern whites, to end Reconstruction and to allow the re emergence of a system of white domination in the South, a system based on segregation and disenfranchisement. To get there, the Supreme Court had to bless and validate laws that effectively repudiated the Fourteenth and Fifteenth Amendments. Segregation the principle of separate but equal will violated the Fourteenth Amendment, but the Supreme Court pretended otherwise in the tragically awful case of Plessy v. Ferguson. Similarly, laws designed to block African Americans from voting were systematically upheld by the Supreme Court. Lincoln's promise of a moral Constitution was betrayed, because although the Moral Constitution remained on paper, it was effectively a dead letter until the Civil Rights movement and Brown against the Board of Education. What happened after the Supreme Court repudiated the idea of separate but equal in the Brown versus. The Board decision in nineteen fifty four was the beginning of a process of constitutional redemption. The redemption here was not redemption of the original Constitution of seventeen eighty seven, but of Lincoln's Moral Constitution, the constitution embodied in their reconstruction amendments. The Supreme Court itself played a role an important role by saying that separate could never be equal, but the primary role was played by the Civil rights movement, by African Americans, who, in the decade following Brown versus. Board of Education, engaged in civil disobedience, in sit ins, in nonviolent resistance, and in the whole series of dramatic and heroic undertakings that ultimately led Congress to adopt the Civil Rights Act of nineteen sixty four and the Voting Rights Act of nineteen sixty five. In this process, Martin Luther King Junior emerged as in a sense, the second Lincoln, someone who stood from the moral Constitution, not from the standpoint in this case of a government itself, but from the standpoint of the people, and in particular of African Americans, who had been oppressed. The institution of morality and equality was therefore redeemed not by the conferral of a decision from above, like Lincoln the dictator, but rather by the actions of the people who were entitled to the very rights that they were guaranteed under that constitutional order. It was no coincidence that the iconic moment of Martin Luther King's career took place at the March on Washington. Standing in front of the Lincoln memorial. King was becoming a second Lincoln, and because ultimately King was assassinated just as Lincoln had been, the two men became linked as martyrs of the new and moral Constitution. King's explicitly religious identity as a minister played an important role in solidifying and expanding Lincoln's theology of the Civil War. The blood of the Civil War had atoned for original sin, but it was the efforts of African Americans and King's own sacrifice that redeemed Lincoln's Constitution from the betrayal it had undergone in the years after the abandonment of reconstruction. Today, of course, we know that that redeemed Constitution, with its moral principles of equality and liberty, is not perfectly achieved. Everyone on the American political spectrum today embraces in principle Lincoln's Constitution. Everyone therefore should recognize today that we do not have the Constitution of seventeen eighty seven, but we do have the constitution that Abraham Lincoln brought into existence with emancipation on January first, eighteen sixty three. At the same time, we need to recognize that a written constitution embedding the principles of a quality and liberty does not on its own bring those moral principles into existence. We still have persistent inequality in the United States, including inequality before the law of the kind that the moral constitution prohibits. The truth is that a moral constitution, like all constitutions, is not an end state. It's a promise of an ongoing effort. Through our moral constitution, we define our national project, but we can never fully achieve it. Lincoln's ultimate legacy, then is not the accomplishment of a genuinely moral constitution. It is rather his act of breaking the compromise constitution and the hope and the promise of a moral constitution that will always be in the process of being redeemed. If you enjoyed this episode of The Broken Constitution podcast, I can tell you with a great deal of certainty that you're also going to enjoy the book itself, The Broken Constitution, Lincoln, Slavery and the Refounding of America, will be out now. Please enjoy reading it, and if you have thoughts or ideas, I hope you will write to me about what you think. The point of this book is to create a conversation, and you, the listener of this podcast, are one of the people from whom I wish to hear. The Broken Constitution was produced by Nathan Sims and Quick and Dirty Tips, a proud part of McMillan Publishers Home far Oar Straus and Drew, who are publishing my book