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Reform or Revolution?

Joshua Braver
Thursday, March 24, 2022, 9:01 AM

A review of Noah Feldman, “The Broken Constitution: Lincoln, Slavery, and the Refounding of America” (Farrar, Straus and Giroux, 2021).


The Lincoln memorial. (William Pei Yuan,; CC BY-SA 4.0,

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A review of Noah Feldman, “The Broken Constitution: Lincoln, Slavery, and the Refounding of America” (Farrar, Straus and Giroux, 2021).


“It only has been radicals who have changed this country. Abraham Lincoln made the radical decision to sign the Emancipation Proclamation. Franklin Delano Roosevelt made the radical decision to embark on establishing programs like Social Security. … If that’s what radical means, call me a radical.” 

Alexandria Ocasio-Cortez

What does it take to achieve a just constitutional order? Must political leaders and activists crush foundational norms and laws to enact sweeping change, or might working within the system be a safer alternative? Every generation in the United States confronts this dilemma anew. In his new and magnificent book, the “Broken Constitution: Lincoln, Slavery, and the Refounding of America,” Noah Feldman argues that Abraham Lincoln reluctantly gave up on reform and chose the revolutionary path. Feldman documents how Abraham Lincoln reconstructed the U.S. Constitution from an immoral one based on a compromise with slavery to a moral Constitution guaranteeing citizenship and equal rights regardless of race. To accomplish this transformation, Lincoln enacted “his radical, unilateral interpretation of the Constitution,” which “pressured, stressed, and ultimately broke his old idea of the Constitution.” Again and again, Feldman emphasizes the irregularity, illegality and audacity of Lincoln’s actions. Feldman is astounded by how “rupture led to rupture and that rupture led to transformation.” 

That Feldman would prove such a wonderful guide to the necessity of violating the Constitution is ironic. As a professor at Harvard Law School and a widely read and influential public intellectual, Feldman has staked his reputation as a protector of the rule of law and constitutional norms, opposing actions by Democrats and Republicans alike that he believes threaten the stability of the Republic. In other words, Feldman protects the very values that Abraham Lincoln ultimately refused to abide by. Whereas Feldman the historian celebrates Lincoln as a revolutionary, Feldman the public intellectual believes slow and steady reform is sufficient to address today’s woes. 

I point out this seeming contradiction because it is resolvable, and its resolution illuminates Feldman’s efforts to restore an out-of-vogue form of constitutional patriotism. By celebrating Lincoln’s establishment of a new, morally praiseworthy constitution, Feldman attempts to reinvigorate a traditional center-left and center-right constitutional patriotism that embraces a distinctly reformist form of politics. That tradition, which began with the founding of the Constitution as a document celebrating the values of democracy, liberty, and equality, calls on citizens to protect and continue working to achieve this “more perfect Union.” But the emerging popular consensus that the Constitution was pro-slavery threatens to fatally undercut this form of patriotism. 

Feldman accepts that the immoral Constitution of 1789 does not deserve our fealty, and that Lincoln was right to destroy it. But the new Constitution—the Constitution not of the Founding Fathers but of Lincoln, Frederick Douglass and Martin Luther King Jr.—does deserve our reverence. Since the Constitution’s roots are now pure, the Constitution can grow in the right direction through reform, through the orderly process of elections and legislation. Lincoln’s generation enacted a revolution so that we can avoid the same destructive process. By shifting the foundations of the Constitution from 1789 to Reconstruction, Feldman might rescue the reformist agenda of constitutional patriotism for a new generation. 

But I am ultimately skeptical that Lincoln offers an escape hatch from the dilemma between reform and revolution. Each generation discovers itself complicit in injustice, and it is an open question whether old constitutional arrangements are up to the job of addressing them. To illustrate the persistence of this dilemma, I will draw upon and expand Feldman’s historical analysis. I make two points. First, if norm-breaking was necessary to transform the Constitution in the past, might it be necessary again today? Should not witnessing Lincoln’s slow and wrenching abandonment of his previous strict adherence to the letter of the law cause Feldman to reconsider his own? Indeed, I show how subsequent generations of New Dealers and civil rights activists waived off the warnings of moderates and followed Lincoln’s example by enacting change through illegal means. Respect for Lincoln’s and other constitutional heroes’ achievements does not involve a strict obedience to the Constitution but, rather, a willingness to greatly bend it when conditions demand it. 

Second, while Feldman stresses Lincoln’s radicality, perhaps Lincoln and the Reconstruction Republicans were still too cautious. Reconstruction of the South ultimately failed, leaving the new moral Constitution in tatters until the rise of the civil rights movement almost a hundred years later. Feldman blames this failure on a lack of political will, but it is equally plausible that the new, ostensibly moral Constitution itself held back the measures necessary for Reconstruction. Perhaps Reconstruction was unable to achieve its moral vision not because Northern leaders betrayed the Constitution, but because they were still too attached to it and the rule of law. Republicans’ unwillingness to truly overthrow the Constitution undermined their efforts at revolution and left in place undemocratic structures that continue to haunt us today. 

Two Constitutions

Noah Feldman tells the story of how Abraham Lincoln transformed the Constitution. It is a common refrain that the United States has the oldest constitution that is still in effect today. But Feldman argues this received wisdom is wrong: The United States has had two constitutions, not one. The first Constitution of 1787 was established by the Founding Fathers in the Constitutional Convention. Its purpose was primarily practical. It was a state-building project that addressed the problems of governance that plagued the Articles of Confederation. It solved problems of tax collection, building an army, and disputes over territories, and in time it became the basis for a powerful commercial republic that expanded westward at a rapid clip. 

The price for this prosperity was an immoral compromise between the North and the South to protect slavery that lay at the very heart of the U.S. Constitution. The Constitution tremendously boosted the South’s representation through the Three-Fifths Clause, ensured that slaves fleeing to free states would be returned, and implicitly prohibited Congress from passing legislation to abolish slavery anywhere but in the territories and Washington, D.C. Feldman writes that this was a compromise precisely because northern delegates to the convention viewed slavery as a “deep moral wrong.” The compromise came under great stress as expansion westward repeatedly created new conflict over the question of whether new states would be slave or free, and this conflict eventually led to the Civil War. 

In order to successfully wage that war, Lincoln repeatedly violated the Constitution. Feldman focuses on three of Lincoln’s illegalities: his decision to wage war on the Confederacy, his suspension of habeas corpus and his issuance of the Emancipation Proclamation. Feldman is careful and thoughtful in elaborating the twists and turns that led to Lincoln’s decisions. Indeed, one of the many great virtues of the book is to see these controversies through the eyes of Lincoln’s contemporaries. Many law professors today accept Lincoln’s legal rationales or invent their own, but by placing Lincoln’s justifications within the context of 19th century jurisprudence, Feldman makes a strong case that these explanations were outside the legal mainstream. Here, Feldman skillfully reconciles his expertise as a law professor and his skill as a popular writer, rendering a careful dissection of old legal doctrine accessible and exciting. The reader thinks alongside the great legal minds of the 19th century and feels Lincoln enduring the opposing and sharp pulls of law and politics. 

Lincoln’s third illegal act—his executive order to emancipate all slaves in rebellious states—is the turning point in Feldman’s story. The previous two illegalities were justified as measures necessary to protect and preserve the old Constitution against Southern attacks on it. In this early stage of the war, the restoration of slavery was still a possibility. In a letter published in the New York Times, Lincoln famously stated that “the sooner the national authority can be restored the sooner the Union will be ‘the Union as it was.’ ... My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery.” 

Feldman reasons that since the compromise Constitution was based on preserving slavery, emancipation broke that old Constitution. In speeches like the Gettysburg Address, Lincoln articulated a new vision of the Constitution “conceived in Liberty” and “dedicated to the proposition that all men are created equal.” Although Lincoln would not live to see the constitutional fruits of his vision, his Emancipation Proclamation laid the foundation for the 13th, 14th, and 15th Amendments, whose intention was to give African Americans equal civil and political rights and increase the power of the national government in order to protect those rights. Almost everyone recognized these amendments as the most significant change to the Constitution after the Bill of Rights, but Feldman goes even farther by claiming that they effectively created a new moral Constitution. On this view the true founding of today’s Constitution was not in 1787, but in 1870, when the last of the three Reconstruction amendments was ratified. Of course, one problem with Feldman’s happy-ending story is that Reconstruction failed. But according to Feldman, Lincoln’s efforts were not in vain, since Lincoln’s moral vision of the Constitution was redeemed by the civil rights movement in the 1960s. 

Although Feldman dodges the common faults of Founding Father mythology, the basic lesson of the narrative remains. At the heart of American politics is a bipartisan narrative in which the Constitution stands for the foundational and just ideals of the nation. Both Republicans and Democrats fight for these ideals, even if they differ on the ideals’ exact contours or the means to achieve them. Each generation works harder to achieve that vision in order to create a “more perfect Union.” Often this story began with the Founding Fathers and the Constitutional Convention as laying a brilliant and moral foundation for our politics in the Constitution. On slavery, the Founders and the Constitution were flawed, but they believed that the Constitution would put slavery on the road to extinction. An old-fashioned liberal, Feldman has clear sympathies with this perspective. But in the world of Black Lives Matter and the 1619 Project, Founding Father hagiography has long lost its appeal. Indeed, historians increasingly dismiss the once widely held notion that the Constitution put slavery on the road to extinction and instead accept that that the Constitution entrenched slavery

Feldman is not afraid to incorporate these developments. He squarely blames the Founders for their concessions to slavery and dismisses their explanations as feeble rationalizations. Feldman accepts the new historical consensus that the Constitution was not based on soaring ideals but was deeply complicit in slavery because those compromises were necessary for building a state that could more effectively collect taxes and wage war.

How can Feldman reconcile his love of the Constitution with an acknowledgment of its rotten roots? His solution is to claim that the present Constitution is almost an entirely new tree. Feldman incorporates these insights about the deep structural and moral flaws in the Constitution’s founding but still tries to rescue the essential lesson of a moral Constitution whose values should guide the nation’s politics. Feldman’s implicit message is that James Madison (a previous biographical subject for Feldman) is no longer the essential Founding Father. Rather it is Abraham Lincoln, Reconstruction Republicans like Thadeus Stevens, and Martin Luther King Jr. who should be our role models as we search for a moral path forward. 

Unfortunately, Lincoln’s radicalism and the failure of Reconstruction undercut this reformist takeaway of Feldman’s book. 

The Rule of Law

Abraham Lincoln began as a zealous adherent to the letter of the law but in response to crisis became a ruthless norm-breaker. Should Feldman evolve just the way Lincoln did? Feldman’s work as a historian presents a vantage point to consider and critique Feldman as an engaged public intellectual. Feldman is a professor at Harvard Law School, but his influence goes beyond the pages of law reviews and the hallways of academia. He was one of the foundational thinkers for Facebook’s “Supreme Court,” was called by Democrats in Congress to testify during the first Trump impeachment hearing, and substantially influenced the content of the Iraqi Constitution. In addition to being a prolific guest op-ed writer, Feldman has a regular column at Bloomberg and his own podcast, both enjoying wide audiences. 

Throughout, Feldman has been a consistent and vocal defender of the Constitution and constitutional norms against an ever-growing list of critics, especially on the left, who claim they have outlived their usefulness. Constitutional norms are the informal, unwritten, and habitual rules of political contestation that ensure stability and fair play. Many progressives argue that conservatives are winning political battles because they are ruthlessly breaking norms, and progressives will continually lose until they are willing to respond in kind. On this view, the Republic will be lost if Democrats turn the other cheek in response to Mitch McConnell’s stealing of a Supreme Court seat from Merrick Garland, the Senate’s and the Electoral College’s pro-Republican tilt, and Republican efforts to undermine free and fair elections by suppressing voter turnout by minority communities, partisan gerrymandering, and ongoing efforts to steal presidential elections through state legislatures. It is time, hard-nosed progressives argue, to “fight dirty” and stop bringing knives to gun fights. Refusing to break norms is a form of unilateral disarmament. Progressives too should play “constitutional hardball.”

Feldman believes that his fellow progressives are misguided. His consistent rejoinder is that “stoop[ing] to [the] level of conservatives” will create a downward spiral. He writes that “meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law.” Indeed, for Feldman, progressive norm-breaking in the age of Trump is especially misguided, as the rule of law is even more important to protect when it is under threat by would-be authoritarians. For those reasons, Feldman has opposed court packing, politically motivated impeachments, executive orders extending the eviction moratorium, adding Washington, D.C., as a state, and pressuring Supreme Court Justice Stephen Breyer to retire. 

Feldman’s fear for the Constitution’s stability echoes the feelings of a young Lincoln, who held a deep “reverence for the constitution.” In his famous debut as a politician, today dubbed the 1838 Lyceum Address, Lincoln exhorted “every American” to “swear by the blood of the Revolution, never to violate in the least particular the laws of the country; and never to tolerate their violation by others. ... [L]et every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty.” Delivered in the aftermath of the murder of abolitionist Elijah Lovejoy, Lincoln was responding to radicals on both sides who threatened the Constitution: abolitionists who wanted to abandon the Constitution’s compromise with slavery and “fire-eating” Southern secessionists who were physically assaulting abolitionists. Lincoln feared that a future Caesar or Napoleon would rise to power either “at the expense of emancipating slaves or enslaving free men.” 

Feldman, like many before him, points out the irony that Lincoln did not heed his own warning and became the “Great Emancipator.” Lincoln had to evolve because the old constitutional order was not stable; it brought to the fore an irresolvable conflict between the North and South. Like Feldman, the young Lincoln was staunchly devoted to the rule of law, but the moral Constitution was achieved only because Lincoln abandoned his earlier commitments. 

I bring up the parallels between Feldman and the young Lincoln because it helps think through when and where constitutional norms deserve our respect. History cannot tell us how to act, but it can serve as a resource to reflect upon our own commitments. Usually, this entails finding a past hero and then striving to live up to the hero’s legendary example. But we might also find less comforting messages in the past. We might find political actors who shared our values but whom history did not vindicate. Such discoveries should give us pause, a moment of reevaluation, to see how our values in a different time period were an impediment to justice. Such parallels are not the end of the discussion, but the beginning, in which we pull apart the context for these past failures and compare them to today’s world. 

What might Feldman have counseled Lincoln to do when he was wrestling with the Emancipation Proclamation? I think Feldman would reach the same conclusion that Lincoln did: The norms of the old Constitution were supporting an unjust and obsolete order and so they must be broken so that the enslaved can achieve freedom. But it is plausible that some with a Feldmanesque concern for constitutional norms might have taken a different path. One clue might be the actions of Benjamin Curtis, a retired Supreme Court justice and a graduate of Harvard Law School, where Feldman now teaches. Curtis was no secessionist and wrote the now-classic dissent in Dred Scott. But as a devotee to the rule of law, Curtis could not hold back his dismay at Lincoln’s suspension of habeas corpus and the preliminary Emancipation Proclamation. In his pamphlet titled “Executive Power,” Curtis roundly condemned Lincoln for “super-add[ing] to his rights as commander the powers of a usurper; and that is military despotism.” Indeed, Curtis’s pamphlet and his opposition are Feldman’s most striking evidence for the extreme illegality of the Emancipation Proclamation. The arguments of Curtis and other rule-following anti-emancipationists have not aged well; in retrospect, their protests that the law trumped their desire to end slavery, even during a civil war, appear excessively legalistic. 

These historical parallels counsel caution in thinking through when constitutional norms and law must be preserved and when they must be crushed. But of course, the parallels are hardly conclusive evidence that Feldman is misguided today. For one, Feldman defends not the slaveocratic Constitution of 1787, but the present and ostensibly just Constitution. Perhaps, today’s constitutional norms deserve respect because they serve the values of equal political and civil rights. If that is the case, and I think it is, then Feldman is primarily a small-c conservative who values stability not for its own sake but, rather, as a means to higher substantive ends. After all, his book time and again celebrates the destabilizing transformation of the Constitution. For Feldman then, the rule of law is not an end in and of itself. It should not be fetishized, at least not for progressives. Norms should be protected only insofar as the constitutional order itself is just. Feldman’s progressive opponents too might celebrate the rule of law when their just constitutional order arrives. They disagree, not over whether stability is important, but over whether the Constitution is achieving its professed goals. 

In some ways then, a young Lincoln offered a more coherent defense of the Constitution than Feldman musters. Lincoln accepted that deeply rotten immorality was the cost of constitutional governance; compromise was the point of the Constitution. For a young Lincoln, stability should trump justice. But Feldman cannot cut the same deal because he supports today’s Constitution because it is just, not merely that it is a stable and working political arrangement. So why then does Feldman repeatedly appeal to the rule of law or stability when rebutting those who wish to transform today’s undemocratic institutions, such as the Electoral College or the rule of law? Unlike Lincoln, Feldman’s defense of the rule of law risks speaking past his opponents, whom Feldman should engage primarily on the grounds of whether their critiques of the system are just and whether the system is capable of reforming itself legally. Feldman engages these points at times, arguing for example that the Supreme Court must be protected in order to “protect[] ... fundamental rights” and “the structure of democracy. But insofar as he defends constitutional norms as necessary for stability or the rule of law, he risks lapsing back into young Lincoln-like prudential and conservative defenses of the Constitution that are inconsistent with Feldman’s defense of constitutional patriotism. 

Feldman’s case for constitutional norms is undercut further by the norm-breaking of subsequent political movements. Feldman can defend constitutional norms today because they occur under the “just Cconstitution” of Reconstruction. But unlike Feldman, New Dealers and civil rights activists were not satisfied with Lincoln’s Constitution and they did not let constitutional norms stand in the way of revolutionizing it further. In his 1932 acceptance speech for the Democratic presidential nomination, Franklin Roosevelt proclaimed, “Let it be from now on the task of our party to break all foolish traditions.” The very speech itself was a violation of the now-forgotten norm that presidents do not attend the party’s convention, but that violation pales in comparison to the more egregious norm-busting Roosevelt took to end the Great Depression and enact the New Deal. Roosevelt ran for four terms, unilaterally removed the United States from the gold standard, and built a new administrative state. Feldman opposes court packing, but the conventional wisdom is that Roosevelt’s packing attempt is what stopped the Supreme Court from striking down key New Deal legislation, including the Social Security Act and the right to collective bargaining. 

Roosevelt falls outside the scope of Feldman’s book, but another law-breaker, Martin Luther King Jr., does play an important role in Feldman’s story. Feldman poses King as the redeemer of Lincoln’s Constitution, writing that “King’s insistence on morality led him to embrace and re-inscribe Lincoln’s legacy as the maker of the moral Constitution.” He notes that King delivered his “I Have a Dream Speech” in a fitting location, in front of the Lincoln Memorial. 

But most importantly, it was not speeches, but civil disobedience, that successfully pressured the government to pass landmark civil rights legislation that Feldman celebrates. While civil disobedience is now a standard part of many protests, at the time it was experienced as a novel and shocking tactic. Writing from a jail cell, King argued eloquently that “an unjust law was no law at all,” in his response to “moderates” who condemned his civil disobedience as an affront to the rule of law. King wrote the canonical “Letter from a Birmingham Jail” in response, not to die-hard segregationists, but to moderate southern clergymen who “urged” King to call off his marches because “the decisions of those courts should ... be peacefully obeyed.” The “decisions” they referred to were those of the Alabama courts that enjoined King from marching; King disobeyed, and the Supreme Court upheld his conviction. The swing and moderate Justice Potter Stewart wrote the majority opinion with its now infamous lines that “respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” 

In response to my suggestion that Feldman has a similar sensibility to Justice Curtis, who shortsightedly condemned the Emancipation Proclamation as illegal, Feldman might distinguish himself from Curtis on the ground that Curtis argued for the rule of law while living under a fundamentally immoral constitutional regime. But the same cannot be said for Stewart, who was a justice appointed under Lincoln’s Constitution. As a fellow centrist, where would Noah Feldman have stood on King’s law-breaking? 

The Complicity of Lincoln’s Constitution

The problem for Feldman’s attempt to draw a line between the immoral Constitution of 1789 and the moral one that came after is that Lincoln’s Constitution failed. Slavery was replaced by Jim Crow, a new form of brutal racial subordination. But for Feldman, these tragic and horrific developments are not an insurmountable obstacle to his fidelity to Lincoln’s Constitution. Feldman blames this failure on the lack of political will and continued racism of northerners, writing that it is “hard to overstate the degree to which these developments betrayed the moral Cconstitution.” This story of betrayal leaves the Constitution and its ideals innocent of playing any role in Reconstruction’s collapse. It remains unsullied, waiting for future generations to redeem its promise. Indeed, Feldman ends the book celebrating Martin Luther King and the civil rights movement for resurrecting the moral Constitution. Ultimately, the moral Constitution emerges alive and well. Since its ideals are just, Feldman writes that “we remain committed to the idea that the moral Constitution ... should be our beacon. Lincoln’s transformed, moral version of the Constitution endures.” 

But there are some moments in American history that raise the possibility that Lincoln’s transformed moral Constitution was complicit in the failure of Reconstruction. Too many political leaders, especially moderate Republicans, were still too beholden to the rule of law. 

For example, the Constitution prevented the redistribution of land from rebels to newly freed slaves. To be sure, in the traditional narrative, Andrew Johnson, the Supreme Court, and the lack of political will among whites in the North blocked redistribution. But recent scholarship by Daniel W. Hamilton traces the roots to much earlier, to the Republican Party and indeed even to Abraham Lincoln himself. In 1862, Congress debated a bill to confiscate the property of anyone located in a seceding state and who after the act had passed continued to take up arms in rebellion or had given aid and comfort to the rebellion. Moderate Northern Republicans opposed the proposal because they believed it violated the Constitution’s prohibition of Bills of Attainder, or bills that target individuals for punishment. And Abraham Lincoln compounded the problem by drafting a veto message stating that even this watered-down version violated the Constitution’s Treason Clause, which forbids “Forfeiture except during the Life of the Person attained.” In his book, “The Limits of Sovereignty,” Hamilton describes the debate as “an odd and arresting scene: Members of the majority party battling one another over increasingly fine legal questions about the legitimacy of their seizing property of the enemy in the midst of war.” After much debate, the Republican Congress passed the Second Confiscation Act, though compromises due to legal concerns gutted the bill of any real effective enforcement mechanism. 

Another large constitutional stumbling block occurred after the North had won the war and concerned constitutional concerns about the military’s power over Southern states, a topic covered at length in “After Appomattox” by Gregory P. Downs. “Wartime” Republicans believed that the South should be held under occupation with no rights whatsoever for however long it was necessary to reconstruct Southern society. “Peacetime” Republicans such as John Bingham, who would draft much of the 14th Amendment, believed that this violated the Constitution and would lead to military despotism; the military government should not go beyond “one day longer than necessary.” The two sides reached a compromise: They would refuse to seat Southern representatives until those states passed the 14th Amendment or 15th Amendment and enfranchised Black citizens in their state constitutions.

The compromise hindered the Northern response to Southern insurrections against the newly reconstructed governments. Downs describes how in Georgia, for example, “white Democrats ... expelled black legislators, frightened black voters into staying home, killed leading Republicans, dr[ove] sheriffs from office, and crippled leading black politicians.” Before, the army could act on its initiative and judgment to prevent these abuses, but now it relied on the limited powers granted to it by the federal government in a series of Enforcement Acts. Once again, legalism, even as the 1789 Constitution was shattered, stood in the way of justice. 

Feldman’s claim that there are two constitutions is an insightful provocation, but taken too far it might obscure the persistent continuity of the 1789 Constitution. Lincoln and Reconstruction Republicans bent the Constitution to the breaking point, but then stopped short. They overhauled the Constitution, but they did not suspend it or completely replace it, partially because they feared the chaos and dangers of thorough-going revolutionary change. They certainly had a point. We know how disastrous the consequences of such zealous radicalism can be, from the French Revolution to, more recently, Hugo Chavez’s revolution in Venezuela

But the conservatism of Lincoln and the moderate Republicans not only undermined Reconstruction but continues to damn change to this day. Noah Feldman’s contribution notwithstanding, the achievements of Reconstruction can easily be undermined by invoking fidelity to the 1789 Constitution and siding with that constitution’s federalism against the centralizing force of the 14th Amendment. And we continue to wrestle with the undemocratic consequences of the Philadelphia Convention’s decision to create a Senate and the Electoral College. Lincoln’s achievements should be celebrated, but they also should not conceal the cost of stopping short of harder and faster forms of revolution. 

* * *

While the stakes of Reconstruction’s remaking of the Constitution are high and of near-universal interest to U.S. citizens, the story develops through complicated and long-forgotten legal developments. It is a testament to Feldman’s skills as a scholar and public intellectual that he can make accessible the breaking and remaking of legal norms through vibrant writing and their organization in a rich and novel theoretical framework. For that reason, Feldman’s book will be of interest to scholars, students and the general public. Feldman puts readers in the mind frame of 19th century public and legal intellectuals so that they can understand just how thoroughly Lincoln broke preexisting understandings and, indeed, broke the 1789 Constitution itself. 

The Broken Constitution ends with the creation of a new Constitution through the combined efforts of Abraham Lincoln and Reconstruction Republicans. Respect and reverence for their achievements, for Feldman, entails continual reform. But these achievements were revolutionary, and future generations, pushed by New Dealers and civil rights activists, continued to revolutionize the Constitution through shocking acts of norm-breaking. Such acts are far from conclusive proof that revolution is called for now. While much of this review scolded timid moderates whose respect for law blinded them to the need for social change, history too is littered with those whose zeal for justice damned their countries to cycles of instability and violence. Whether what is called for is reform or something more radical is an act of political judgment. Lincoln’s tortured exercising of that judgment does not relieve us today of having to bear the same burden. We too will have to decide if we should break the Constitution. And if we break it, we too will have to decide whether to follow the cautious limits on that form of revolution set by the examples of Lincoln, Roosevelt and King. Or whether this time around the revolution should truly abandon the 18th century Constitution to begin anew. 


Joshua Braver is an assistant professor at the University of Wisconsin Law School. He teaches and writes in the area of constitutional law, history, and theory. His scholarship is available here. He has also contributed to a variety of popular outlets like Politico, Talking Points Memo, and Dissent.

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