Feldman’s reliance on Jefferson Davis to frame a book on Abraham Lincoln thus makes perfect sense: Aside from the slaveholders’ insistence on the ethical legitimacy of slavery, Feldman’s constitutional analysis consistently backs their arguments over Lincoln’s. Less than perfect, unfortunately, are the renderings of American history he offers to support his surprising thesis ... Feldman’s depiction of the Constitution’s connection to slavery is questionable ... Feldman ignores the antislavery currents inside the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks how much the Constitution’s provision authorizing abolition of U.S. participation in the Atlantic slave trade was an antislavery victory over the lower South, which tried to block it as a dealbreaker — a measure that, even when weakened by a maneuver Madison bemoaned, was the first serious blow ever against the trade undertaken in the name of a national government. Feldman fails to see the Constitution as an ambiguous document that offered protections to the slaveholders but also contained considerable antislavery potential, sufficient for thoughtful if wishful Northern abolitionists like Benjamin Rush to hail it as the death knell of slavery ... Coming at a time when not a few scholars have been saying that our modern Constitution is broken, Feldman’s final paradox — that it took an elected tyrant to emancipate the enslaved and usher in a rebirth of American freedom — can sound ominous. Still, there should be no cause for alarm. The Broken Constitution displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past. What it lacks is historical soundness. In the end, Jefferson Davis’s constitutionalism proves, once again, no match for Abraham Lincoln’s.
Vignettes about slavery, the negotiators of the compromises, abolitionists, the Civil War, and beyond offer context for Feldman’s innovative legal analysis. In describing interactions among political groups, voting rights, diverse views of abolitionists, suspending habeas corpus, and censorship, Feldman offers insights strikingly relevant to today’s politics.
While Feldman’s book...has many valuable insights, its argument downplays some crucial context. Feldman indicts Lincoln for his wartime suspension of civil liberties but has little to say about the abuses of power that provoked the constitutional crisis: Southern enslavers’ prolonged suppression of free speech or their radical defiance of Lincoln’s lawful election ... Feldman deftly contrasts President James Buchanan’s position that the federal government was powerless to make war on the states with Lincoln’s conviction that the president had the constitutional duty to suppress a rebellion ... In places The Broken Constitution reads like an arraignment of Lincoln, accusing him of illogical, incoherent, paranoid thinking and of 'subverting' the Constitution ... Feldman’s thought-provoking case for a stark rupture in Union war aims will surely occasion lively debate. But his astute argument would have been better served by a less-polemical tone.