0:15

Pushkin. This

0:21

is The Broken Constitution, a

0:23

miniseries for unknown history from

0:25

quick and dirty tips and deep

0:28

background from Pushkin Industries.

0:30

Over three episodes, I'm going to

0:33

talk about Abraham Lincoln and how

0:35

he needed to break the American Constitution

0:38

in order to remake it. It's all

0:40

based on my new book, The Broken

0:42

Constitution, Lincoln, Slavery

0:44

and the Refounding of America, out

0:46

November second. If

0:48

you're listening to this podcast, you already

0:51

know that one of the most important and pressing

0:53

questions facing the United States

0:55

today is whether racism and

0:57

slavery are encoded

0:59

into the DNA of our nation by

1:02

virtue of being encoded into the

1:04

US Constitution. This

1:06

question is behind debates about who we

1:08

are, what we should teach,

1:11

and what the possibilities are for

1:13

our nation going into the

1:15

future, especially with respect

1:17

to racial equality. I

1:19

wrote this book because I wanted to know

1:21

the answer. I've devoted most

1:24

of my professional life to thinking about

1:26

the US Constitution and about other

1:28

constitutions, whether in Iraq

1:30

or Tunisia or anywhere else around

1:32

the world. I'd written books

1:35

about James Madison and the drafting

1:37

of the US Constitution, as well as its ratification

1:40

and I'd also written a book about the interpretation

1:43

of the Constitution in the modern period,

1:45

starting with the justices appointed by Franklin

1:48

Delano Roosevelt in the nineteen

1:50

thirties and going all the way up into

1:52

the nineteen sixties. That

1:54

study gave me a foundation in trying

1:56

to answer the question. But I must

1:59

tell you that I was genuinely

2:01

astonished by many of the things

2:03

that I discovered in researching this book,

2:05

and the answer that I reached is not

2:08

the answer that I thought I was going to

2:10

reach when I began. My

2:13

surprise can be summed up in

2:15

three simple propositions,

2:18

each of which I believed and each

2:20

of which I now think is wrong.

2:24

I thought that from the start our

2:26

Constitution in the United States functioned

2:28

as a higher moral law

2:31

guiding us into the future. It

2:34

did not. I

2:36

thought we had the same constitution

2:39

that we had had since it was drafted

2:41

in seventeen eighty seven and ratified

2:44

in a couple of years afterwards. As

2:46

it turns out, we do not.

2:50

And perhaps most surprisingly, I

2:52

always thought of Abraham Lincoln as

2:54

the president who saved the US

2:56

Constitution. In fact, however,

2:59

the truth is that Abraham Lincoln

3:02

did not save our Constitution. He

3:05

broke the Constitution three

3:07

separate times, in three separate

3:10

ways, in order to transform it

3:12

into something very new and

3:14

very different. Over the course

3:17

of this mini series, I'm going to discuss all

3:19

three of these ideas misconceptions,

3:21

really, and I'm going to tell

3:23

you a story, the story

3:26

of Abraham Lincoln's own engagement

3:28

with the Constitution and what it reveals

3:31

not only about his tremendous importance

3:33

as a thinker about the Constitution, but

3:36

also about the Constitution itself.

3:39

In this first episode, I'm going to suggest

3:42

that the Constitution Abraham Lincoln

3:44

supported was not a

3:47

moral blueprint for our nation

3:50

or a higher law that the great

3:52

majority of Americans could support

3:54

and treat as guiding them into

3:56

the future. Instead,

3:59

the Constitution of the United States

4:02

until the Civil War was a

4:04

compromise constitution, and

4:07

that compromise was one

4:09

that Abraham Lincoln himself was

4:12

entirely devoted to preserving.

4:16

What made the Constitution a compromise

4:19

everybody remembers from eighth grade Civics

4:22

that the original Constitution of seventeen

4:24

eighty seven contained a major compromise

4:27

between the large and the small states. That

4:30

was the compromise that created popular

4:32

representation in the House of Representatives,

4:34

but treated all states as the

4:36

same with respect to representation in

4:38

the Senate. That was a big fight

4:41

in Philadelphia in the long hot summer

4:43

of seventeen eighty seven, and it culminated,

4:45

indeed in a walkout where the small

4:48

states told the large states, unless you give

4:50

us equal representation in the Senate, we're not

4:52

going to participate in the Constitution at

4:54

all. But as the summer

4:56

progressed, the most astute delegates

4:58

there began to realize that

5:01

the real conflict that was going to

5:03

emerge in the United States, and they could already

5:05

be sensed in the Convention, was not between

5:07

large and small states. It was between

5:10

northern states that were either free or

5:12

on their way to becoming free states,

5:14

and Southern states that were committed

5:17

to slavery as crucial

5:19

to their economic way of life. The

5:21

compromise that took place in seventeen

5:24

eighty seven between the northern

5:26

and the Southern states had three components

5:29

each and every one of them was connected

5:32

to slavery. The

5:34

first was the three fifths compromise.

5:37

The South wanted enslaved persons

5:40

of African descent to

5:42

be counted as full persons

5:44

for the purpose of representation. Their

5:47

idea, of course, was that the enslaved

5:49

persons would never have the opportunity to

5:51

vote, but by counting slaves,

5:53

Southern states would have greater representation in

5:55

the House of Representatives because slaves made

5:58

up a significant part of the Southern

6:00

population. Northern

6:02

states, in contrast, did not want

6:05

to count slaves at all in

6:07

total numbers for representation in the House

6:09

of Representatives because they believed

6:11

that because enslaved persons did not have the

6:13

right to vote, it followed

6:15

that they shouldn't be counted, and that

6:18

would give the North more

6:20

proportional representation in the House

6:22

of Representatives. The

6:25

three fifths compromise was designed

6:27

to placate both sides. It

6:29

gave each side part of what it

6:31

wanted, and of course, into

6:33

the bargain, it had the symbolic effect

6:36

of treating slaves as only three

6:38

fifths of human beings. The

6:41

second compromise having to do with slavery

6:44

was one which we barely remember today,

6:47

and that was a guarantee in the Constitution

6:50

that the international trade in slaves,

6:53

importing slaves into the United States

6:56

would be protected for twenty

6:58

years from the time of the ratification

7:00

of the Constitution. The idea

7:02

here was that in the very deepest

7:05

part of the South, especially South Carolina,

7:08

slaveholders felt that they needed many,

7:10

many more slaves than they already

7:12

had in order to expand their economies.

7:15

To do that, they wanted to be sure of

7:18

a steady supply of enslaved persons

7:21

brought from Africa,

7:23

and they knew that international opposition

7:25

to the slave trade, including opposition

7:27

in the North, was growing and strong.

7:30

It's important to keep in mind here that even

7:32

many people who thought that slavery was

7:35

morally acceptable at the time, including

7:37

many in the North, drew the

7:39

line at the idea of capturing people,

7:42

turning them into slaves, and importing

7:44

them across international waters

7:46

to North America. It

7:49

was not unusual for people to oppose

7:51

the slave trade without opposing

7:53

slavery. The Constitution

7:56

guaranteed in an unamendable

7:58

way that for twenty years slaves

8:01

could still be imported. After that,

8:03

it would be up to Congress to determine whether

8:05

the slave trade would be ended, as indeed

8:08

it was. The last compromise

8:10

is one that it's easy to forget today, but

8:13

that was in fact the most significant

8:16

from the standpoint of Americans in the eighteen

8:18

hundreds, and that was the compromise

8:20

over the fugitive Slave Clause.

8:23

The fugitive Slave Clause of the Constitution

8:25

specified that if enslaved

8:28

people were to flee from slave

8:30

states in the South two free states

8:33

in the North, not only would

8:35

they not become free by entering

8:37

into free territory, but

8:40

beyond that, they would be returned

8:43

to their owners. What was

8:45

so fundamentally significant

8:48

about the fugitive Slave clause was

8:50

that it implicated the North

8:52

fully in the practice of slavery.

8:55

It meant that even states that

8:57

abolished slavery themselves would

8:59

still have to participate in the

9:01

realities of slavery by lending

9:04

their legal systems to the capture

9:07

and return of enslaves

9:09

to the status of slavery.

9:12

You may ask, especially if you've seen

9:14

the musical Hamilton, how

9:17

could it be that Northerners

9:19

at the Constitutional Convention, a few

9:21

of whom were at least skeptical about

9:23

the morality of slavery, could have agreed

9:26

to these propositions. The

9:28

short answer is compromise

9:31

was necessary as a

9:33

condition for actually

9:35

getting the Constitution to be

9:38

successfully agreed upon by

9:40

all sides, and even

9:43

Hamilton himself, who was

9:45

perhaps not as fully committed to abolition

9:48

as lin Manuel Miranda would have us think.

9:51

Hamilton actively defended

9:53

this compromise, and he described

9:55

the three fifths proposition by

9:57

saying the quote, it was one result

10:00

of the spirit of accommodation which

10:02

governed the Convention, and without

10:05

this indulgence, no union

10:07

could possibly have been formed.

10:11

That sentence explicitly

10:13

articulated what everybody knew.

10:16

The Constitution was a compromise, and

10:19

it was a compromise between slaveholders

10:22

and non slaveholders and accommodation

10:25

without which there could not have

10:27

been a continuing union.

10:30

What did Abraham Lincoln himself think

10:33

about this compromise Constitution

10:36

when he was a young man living in Illinois.

10:39

The short answer is that Lincoln was

10:41

a complete and total supporter

10:44

of the compromise Constitution. When

10:47

it came to politics, his choice

10:49

from early on in his career was to

10:51

support the Whig Party and

10:54

to idolize the founder and leading

10:56

figure in the Whig Party, a

10:58

man called Henry Clay, famous

11:01

in American history with the name the

11:03

Great Compromiser. None

11:06

of this is a coincidence. Lincoln

11:09

didn't have to be a follower of Clay or

11:11

a wig. In fact, as a self

11:13

made young man at the frontier,

11:15

he might naturally have become a

11:18

follower of Andrew Jackson and

11:20

the Jacksonian Democrats. Yet

11:22

Lincoln's personality, his experiences,

11:25

and his attitudes drew him to

11:28

Clay. That made Lincoln

11:30

into somebody who was fundamentally

11:33

committed to the ideal of compromise.

11:36

Lincoln's commitment to the Constitution

11:38

as a compromised document can

11:41

be seen in his first really important political

11:43

speech, which he gave in eighteen

11:45

thirty eight. The speech was

11:47

a defense of what Lincoln called the

11:50

perpetuation of our political institutions.

11:53

His main point was that unless

11:55

Americans would abide by the

11:57

rule of law, the Constitution

12:00

and the country were doomed to

12:02

collapse. In the course

12:04

of this speech, Lincoln insisted

12:07

that the overarching value of

12:09

constitutional life must be reason,

12:12

what he called sober reason, cold

12:15

calculating, unimpassioned

12:17

reason, and this reason, Lincoln

12:20

said, should be molded into

12:22

a reverence for the Constitution

12:25

and laws. The

12:27

Constitution must be revered for its

12:29

coldness, its lack of

12:31

passion, and its commitment to reason.

12:35

Starkly absent from this account was

12:37

any commitment to the idea that the Constitution

12:40

was fundamentally morally right. Lincoln,

12:43

of course himself was not

12:46

fond of slavery from the moment.

12:48

We have a record of what he thought about it. He

12:50

considered the practice cruel and

12:53

preferred that it not exists.

12:56

And yet Lincoln remained committed

12:58

to the idea that slavery needed

13:00

to be preserved in the Constitution.

13:04

How did Lincoln and other mainstream

13:06

figures in nineteenth century America

13:09

reconcile these two thoughts.

13:13

In Lincoln's case, the answer was one

13:15

that he inherited from Henry Clay, who

13:18

himself had inherited it from James

13:20

Madison and James Monroe. This

13:23

was the idea, the hope, really,

13:26

the aspiration at best, that

13:28

slavery would die what Lincoln called

13:31

unnatural death. The

13:34

theory here was that somehow, as

13:36

if by magic, slavery

13:38

would cease to be economically viable,

13:41

and that Southerners would, as a consequence, stop

13:43

relying on it as the basis for their

13:46

economies. As a loyal

13:48

son of the old Northwest and of

13:50

Illinois, Lincoln himself

13:52

was not committed to slavery, which he always

13:55

viewed negatively, but the

13:57

world in which he lived and the

13:59

economy of the people whom he eventually

14:01

sought to represent as he entered politics,

14:04

depended on the expansion of

14:06

the country across the continent,

14:09

eventually all the way to California,

14:11

and that expansion, in turn

14:14

was completely bound up in

14:16

the expansion of slavery.

14:19

Over the course of the eighteen hundreds, the

14:21

Constitution was therefore gradually

14:24

reaffirmed as a

14:27

blueprint for the capacity of

14:29

the country to expand. In

14:31

order to cross the continent and

14:34

achieve what came to be called manifest

14:36

destiny, the country needed to

14:38

be unified. It couldn't

14:40

be broken into two or three

14:42

different mini republics, which might establish

14:45

tariffs and other limitations on trade

14:47

as among them now.

14:50

Notwithstanding the felt

14:52

necessity by Northerners, Westerners,

14:55

and Southerners of maintaining unity,

14:58

the eighteen hundreds still saw

15:01

a succession of major

15:03

crises, which played themselves

15:05

out as crises around the Constitution.

15:09

The Constitution, in practical terms,

15:11

was a compromised deal between

15:14

slaveholders and non slaveholders

15:17

designed to facilitate expansion. But

15:20

each and every time that the

15:22

country expanded to include

15:24

territory that would become part of a new state,

15:27

the compromise came into

15:30

doubt. If they were free,

15:32

that might give the North an ultimate

15:34

advantage and the capacity to

15:37

alter the terms of the deal and

15:39

make slavery less powerful or indeed

15:41

eliminated. If, on the

15:43

other hand, the new states were to be admitted

15:46

to the Union as slave states, that

15:48

would create circumstances where the slave

15:50

states might be able over time

15:52

to transform the Union

15:55

into an entirely slave entity,

15:58

in which the Northern states, even if they didn't

16:00

have slavery, would be further and further

16:02

implicated in the practice. Not

16:06

by the design of seventeen eighty seven, but

16:09

rather by gradual realism.

16:12

A fifty fifty balance in

16:14

the Senate had been established between

16:17

slave states and free

16:19

states, and the crises

16:22

of the eighteen twenties, thirties,

16:24

forties, and fifties, coupled

16:26

with the compromises that purported to save

16:28

them, were all focused

16:31

on the question of the balance of the

16:33

Senate as it would be shaped by

16:35

the admission of new states.

16:38

The paradox, then was that the

16:40

compromises were necessary to maintain

16:43

balance, and the balance

16:45

was necessary to achieve expansion, but

16:47

the expansion itself created

16:50

doubt about the capacities of the compromise

16:53

to exist. Throughout

16:56

this period of time, Lincoln committed

16:58

himself to a centrist position.

17:01

He repeatedly denounced abolitionists

17:05

as people who were doing something unwise,

17:08

namely trying to undermine

17:11

the very balance that was crucial

17:13

to the existence of compromise. At

17:16

the same time, he maintained a

17:18

moral objection to slavery, one

17:20

that he expressed more and more clearly

17:23

during these years. The

17:26

way for Lincoln and others to achieve

17:28

some kind of coherence, if you

17:30

can call it, that, was to remind

17:33

themselves and everybody else that

17:35

the Constitution was a set of rules

17:37

that deserved reverence and obedience

17:40

because everyone had promised to follow

17:42

it as part of a compromised

17:44

deal. The idea that you had a

17:46

moral duty to keep an agreement which

17:49

was itself all about an immoral

17:51

arrangement, required tremendous

17:54

conscious analysis of the

17:56

problem and simultaneously

17:58

tremendous denial of the fundamental

18:01

immorality that underlay it. And

18:04

it's not as though nobody in the United

18:07

States at the time was thinking

18:09

about the contradictions of this compromise.

18:12

They were abolitionists

18:15

in the United States in the eighteen hundreds

18:17

made it extraordinarily

18:19

clear that to agree

18:22

to the compromise Constitution was

18:24

to be committed to what the abolitionist

18:27

Wendell Phillips called an agreement

18:29

with death and a covenant with

18:31

Hell. Before

18:33

ending this episode, I want to

18:35

share with you some fascinating

18:37

material that I was able to discover with

18:39

the help of my research assistance. This

18:42

material consists of debates

18:45

among African American abolitionists

18:48

in the eighteen thirties, forties, and fifties

18:51

about whether the original Constitution

18:53

was itself so immoral

18:55

that any accommodation to it

18:58

made the person who accommodated

19:01

also immoral. Consider

19:04

as an example, a fascinating debate

19:07

that took place on January sixth, eighteen

19:10

fifty one, at the sixth State

19:13

Convention of Colored Citizens of Ohio,

19:15

held in Columbus. State

19:17

conventions of free African Americans had

19:19

become common by the eighteen fifties. In

19:22

this particular convention, a

19:25

debate broke out between two significant

19:27

African American abolitionists, one

19:30

a man called Hezekiah Ford

19:32

Douglas, who had escaped being a slave

19:34

at the age of fifteen and went on later to

19:36

command his own unit in the Civil War, and

19:39

on the other side, a man called William

19:41

Howard Day, originally born

19:44

free in New York, a graduate of

19:46

Oberlin College, who would become the founder

19:48

and editor of a weekly Cleveland newspaper

19:50

with the extraordinary name The Aliened

19:53

American. The

19:56

subject of the debate was whether

19:58

it was appropriate for African

20:01

Americans who were free to

20:03

vote in states where they were free

20:05

to vote, such as Ohio. Hezekiah,

20:09

for Douglas, took the view that

20:11

it was immoral for a free

20:13

African American to vote in a federal

20:16

election, because to do

20:18

so was to implicate oneself

20:21

in the immorality of the Compromise

20:23

Constitution. As Douglas

20:25

put it, I hold sir, that

20:27

the Constitution of the United States is pro

20:30

slavery, considered so by

20:32

those who framed it and construed

20:34

to that end ever since its

20:36

adoption. This was simply

20:38

a historical fact, as Douglas and

20:40

his listeners knew, the Compromise

20:43

Constitution did enshrine

20:45

slavery, and Douglas

20:48

went on, we are, all, according

20:50

to Congressional enactments, involved

20:52

in the horrible system of human bondage

20:55

by virtue of the fact that Congress had enacted

20:58

the Fugitive Slave Act in fulfillment

21:00

of the constitutional promise of the Fugitive Slave

21:02

Clause. Douglas was saying everyone

21:05

who voted for Congress was morally

21:08

implicated in their perpetuation of

21:10

slavery. His conclusion

21:12

was, although African Americans were

21:14

free to vote in federal elections

21:16

in Ohio, they should not do so.

21:20

William Howard Day fundamentally

21:22

disagreed. He took the

21:24

view that although the Constitution

21:26

could be construed or interpreted

21:29

as pro slavery, he refused

21:31

to interpret it that way. In

21:34

fact, he said, even though the Supreme

21:36

Court of the United States has given aid to slavery

21:39

by their unjust and illegal decisions,

21:42

that is not the Constitution. Those

21:45

decisions, he said, are not that under

21:47

which I vote. Day drew

21:49

an analogy between the Bible, which

21:51

could be misinterpreted but should be interpreted

21:54

correctly, and the Constitution, which

21:56

had been misinterpreted, he said, but should

21:58

be interpreted differently. Day

22:02

went on to give a pragmatic explanation

22:04

for why he wanted to rely on the

22:07

Constitution as a weapon to

22:09

fight against slavery. Sir,

22:11

he said, coming up as I do in

22:14

the midst of three millions of men in chains,

22:16

and five hundred thousand only half free.

22:19

I consider every instrument precious

22:21

which guarantees to me liberty. I

22:24

consider the Constitution a foundation of American

22:26

liberties, and wrapping myself in

22:28

the flag of the nation, I would plant

22:30

myself upon that Constitution, and

22:32

using the weapons they have given me, I

22:34

would appeal to the American people for

22:36

the rights thus guaranteed.

22:39

William Howard Day was saying that

22:42

whatever the immorality of a constitution

22:44

might be, as applied, he preferred

22:46

to wrap himself in the Constitution

22:49

as a patriotic basis for making

22:51

an anti slavery argument.

22:54

You could see here, in almost

22:56

all of its detail, a version of

22:58

the argument that we are still having today as

23:00

a country. Should the Constitution

23:03

be interpreted in the light of the recognition

23:05

of slavery that initially included, or

23:08

should the Stution instead be read

23:10

against the grain as a document

23:13

that could be used to fight against

23:15

slavery. Notwithstanding that

23:18

history, in this particular

23:20

debate, in the years before the Civil

23:22

War and the eventual emancipation of

23:24

slaves and the passage of the Fourteenth Amendment,

23:27

Hezekiah for Douglas got the

23:29

last word. Responding

23:31

today's plan of wrapping himself

23:33

in the flag, Douglas said, the

23:36

gentleman may wrap the stars and stripe

23:38

of his country around him forty times, and

23:41

with a declaration of independence in one hand and

23:43

the constitution of our common country and the other,

23:46

may seat himself under the shadow of the frowning

23:48

monument of Bunker Hill. And if

23:50

the slaveholder, under the constitution and

23:52

with the fugitive bill don't find you, then

23:55

there don't exist a constitution. Hezekiah

23:59

for Douglas was saying that even

24:01

if a black man were to be in Massachusetts,

24:04

where slavery was outlawed, and sitting

24:07

under the Bunker Hill Monument in Charlestown,

24:09

and wrapped in the stars and stripes, with the Constitution

24:12

in one hand and the declaration in the other, he

24:14

would still be treated by the law

24:16

as an escaped slave, and the

24:19

federal fugitive Slave law would

24:21

still lead the slave catcher to grab

24:23

him up in Massachusetts and treat

24:25

him as a slave. In

24:29

the next several episodes, I'm going

24:31

to describe to you the crisis

24:33

of Southern Secession, the

24:36

war, and the consequences

24:39

of Lincoln's three major acts

24:41

of breaking the Constitution as it was known

24:43

at the time. I'll suggest

24:46

you that those acts eventually

24:48

had a transformative effect on

24:50

the Constitution as it stood up

24:53

to the moment of the Civil War.

24:57

That in turn will lead me to

24:59

suggest that the Compromise Constitution

25:02

that existed up to the Civil War, with

25:05

its character of fundamental willingness

25:07

to incorporate immorality, is

25:09

not the Constitution that we still

25:11

have today.

25:13

For this episode, though, I want to leave

25:16

you with the words of Frederick Douglas,

25:18

the most important abolitionist of them all.

25:21

Over the course of his career, Douglas

25:23

had different points of view on how

25:25

the Constitution should be considered. Early

25:28

on, he was committed to the view that it was

25:30

fundamentally immoral. Later,

25:33

in the run up to the Civil War, he shifted

25:35

to the alternative view that the Constitution

25:37

should be read against its own words

25:39

and against its own history, as a document

25:42

that could promote freedom

25:44

in between. However, in eighteen

25:47

fifty Douglas describe things in

25:49

words that seemed to my mind entirely

25:51

accurate. Here's what he said

25:54

about the Compromise Constitution. Liberty

25:58

and slavery opposite, as

26:00

heaven and hell are both in

26:02

the Constitution, Douglas said,

26:05

and the oath to support the Constitution

26:08

is an oath to perform that

26:10

which God has made impossible.

26:14

The Constitution was, Douglas

26:17

concluded, at war with

26:19

itself. But

26:21

those words that an oath to support

26:23

the Constitution is an oath

26:26

to perform that which God

26:28

has made impossible a self contradiction,

26:31

and the support of a document at war with

26:33

itself precisely

26:35

captures the situation that Abraham

26:38

Lincoln would find himself in

26:40

just ten years after Douglas spoke

26:43

those words. When Lincoln was elected

26:45

president, the Southern States seceded,

26:48

and he was required to consider what

26:50

the oath of office to support,

26:53

protect, and defend the Constitution should

26:55

mean in practice to him.

27:04

To hear more about that, listen

27:06

to the next episode of this podcast,

27:08

The Broken Constitution, coming

27:10

to you in one week. If

27:13

you can't wait, you can listen to the

27:15

next episode a few days early on

27:17

the Unknown History podcast from Quick

27:19

and Dirty Tips. Find it in

27:22

the show notes or your favorite

27:24

podcast app, and go

27:26

ahead and pre order or by

27:28

The Broken Constitution from your favorite

27:31

local bookstore. It's out

27:33

on November second. The

27:36

Broken Constitution was produced

27:38

by Nathan's SEMs and Quick and Dirty

27:40

Tips, a proud part of McMillan publisher's

27:43

home of far Strauss and Jeru, who

27:45

are publishing my book