I have long admired Noah Feldman’s work. Amidst the hornet’s nest in Cambridge, he was consistently a sober voice. But the quality of his recent writings have declined, precipitously. Look no further than his “fan fiction” about Justices Kavanaugh, Gorsuch, and Barrett. I couldn’t bring myself to write about his last column on Court packing. It made me think of a meme: That’s a nice nine-member Court you got there; it would be a shame if something happened to it.
Today, Feldman plugs his new book about Lincoln in the New York Times. He writes that in the span of 18 months, “Lincoln violated the Constitution as it was then broadly understood three separate times.”
First, Feldman writes that Lincoln “waged war on the Confederacy.” I’m sure his book explains that Lincoln argued there was no war–merely a suppression of insurrection. But that fact doesn’t make it into the essay. This inconvenient truth doesn’t advance Feldman’s narrative that Lincoln “broke[] and remade” the Constitution.
Second, Feldman cites the Emancipation Proclamation as another unconstitutional act. On balance, I agree with Justice Curtis that the Proclamation was unconstitutional. But Lincoln offered a cogent defense of the Proclamation as a wartime measure to appropriate confederate property. Again, Lincoln did not think he was violating the Constitution.
Third, Feldman cites the suspension of habeas corpus:
Lincoln suspended habeas corpus unilaterally, without Congress, arresting thousands of political opponents and suppressing the free press and free speech to a degree unmatched in U.S. history before or since. When Chief Justice Roger Taney of the Supreme Court held that the suspension was unconstitutional, Lincoln ignored him.
No, no, no. Lincoln did not ignore Taney. Read Seth Barrett Tillman’s article, Ex Parte Merryman: Myth, History, and Scholarship. At this point, the failure to engage with Seth’s work is academic malpractice. Feldman is not alone. Many prominent scholars continue to repeat this shibboleth.
Constitutional law is built on an elaborate mythology. I very much enjoy debunking those myths: United States v. Burr, Ex Parte Merryman, Jacobson v. Massachusetts, Cooper v. Aaron, and others.
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