Speaker 1: Pushkin. This is The Broken Constitution, a miniseries for unknown
Speaker 1: history from quick and dirty tips and deep background from
Speaker 1: Pushkin Industries. Over three episodes, I'm going to talk about
Speaker 1: Abraham Lincoln and how he needed to break the American
Speaker 1: Constitution in order to remake it. It's all based on
Speaker 1: my new book, The Broken Constitution, Lincoln, Slavery and the
Speaker 1: Refounding of America, out November second. If you're listening to
Speaker 1: this podcast, you already know that one of the most
Speaker 1: important and pressing questions facing the United States today is
Speaker 1: whether racism and slavery are encoded into the DNA of
Speaker 1: our nation by virtue of being encoded into the US Constitution.
Speaker 1: This question is behind debates about who we are, what
Speaker 1: we should teach, and what the possibilities are for our
Speaker 1: nation going into the future, especially with respect to racial equality.
Speaker 1: I wrote this book because I wanted to know the answer.
Speaker 1: I've devoted most of my professional life to thinking about
Speaker 1: the US Constitution and about other constitutions, whether in Iraq
Speaker 1: or Tunisia or anywhere else around the world. I'd written
Speaker 1: books about James Madison and the drafting of the US Constitution,
Speaker 1: as well as its ratification and I'd also written a
Speaker 1: book about the interpretation of the Constitution in the modern period,
Speaker 1: starting with the justices appointed by Franklin Delano Roosevelt in
Speaker 1: the nineteen thirties and going all the way up into
Speaker 1: the nineteen sixties. That study gave me a foundation in
Speaker 1: trying to answer the question. But I must tell you
Speaker 1: that I was genuinely astonished by many of the things
Speaker 1: that I discovered in researching this book, and the answer
Speaker 1: that I reached is not the answer that I thought
Speaker 1: I was going to reach when I began. My surprise
Speaker 1: can be summed up in three simple propositions, each of
Speaker 1: which I believed and each of which I now think
Speaker 1: is wrong. I thought that from the start our Constitution
Speaker 1: in the United States functioned as a higher moral law
Speaker 1: guiding us into the future. It did not. I thought
Speaker 1: we had the same constitution that we had had since
Speaker 1: it was drafted in seventeen eighty seven and ratified in
Speaker 1: a couple of years afterwards. As it turns out, we
Speaker 1: do not. And perhaps most surprisingly, I always thought of
Speaker 1: Abraham Lincoln as the president who saved the US Constitution.
Speaker 1: In fact, however, the truth is that Abraham Lincoln did
Speaker 1: not save our Constitution. He broke the Constitution three separate times,
Speaker 1: in three separate ways, in order to transform it into
Speaker 1: something very new and very different. Over the course of
Speaker 1: this mini series, I'm going to discuss all three of
Speaker 1: these ideas misconceptions, really, and I'm going to tell you
Speaker 1: a story, the story of Abraham Lincoln's own engagement with
Speaker 1: the Constitution and what it reveals not only about his
Speaker 1: tremendous importance as a thinker about the Constitution, but also
Speaker 1: about the Constitution itself. In this first episode, I'm going
Speaker 1: to suggest that the Constitution Abraham Lincoln supported was not
Speaker 1: a moral blueprint for our nation or a higher law
Speaker 1: that the great majority of Americans could support and treat
Speaker 1: as guiding them into the future. Instead, the Constitution of
Speaker 1: the United States until the Civil War was a compromise constitution,
Speaker 1: and that compromise was one that Abraham Lincoln himself was
Speaker 1: entirely devoted to preserving. What made the Constitution a compromise
Speaker 1: everybody remembers from eighth grade Civics that the original Constitution
Speaker 1: of seventeen eighty seven contained a major compromise between the
Speaker 1: large and the small states. That was the compromise that
Speaker 1: created popular representation in the House of Representatives, but treated
Speaker 1: all states as the same with respect to representation in
Speaker 1: the Senate. That was a big fight in Philadelphia in
Speaker 1: the long hot summer of seventeen eighty seven, and it culminated,
Speaker 1: indeed in a walkout where the small states told the
Speaker 1: large states, unless you give us equal representation in the Senate,
Speaker 1: we're not going to participate in the Constitution at all.
Speaker 1: But as the summer progressed, the most astute delegates there
Speaker 1: began to realize that the real conflict that was going
Speaker 1: to emerge in the United States, and they could already
Speaker 1: be sensed in the Convention, was not between large and
Speaker 1: small states. It was between northern states that were either
Speaker 1: free or on their way to becoming free states, and
Speaker 1: Southern states that were committed to slavery as crucial to
Speaker 1: their economic way of life. The compromise that took place
Speaker 1: in seventeen eighty seven between the northern and the Southern
Speaker 1: states had three components each and every one of them
Speaker 1: was connected to slavery. The first was the three fifths compromise.
Speaker 1: The South wanted enslaved persons of African descent to be
Speaker 1: counted as full persons for the purpose of representation. Their idea,
Speaker 1: of course, was that the enslaved persons would never have
Speaker 1: the opportunity to vote, but by counting slaves, Southern states
Speaker 1: would have greater representation in the House of Representatives because
Speaker 1: slaves made up a significant part of the Southern population.
Speaker 1: Northern states, in contrast, did not want to count slaves
Speaker 1: at all in total numbers for representation in the House
Speaker 1: of Representatives because they believed that because enslaved persons did
Speaker 1: not have the right to vote, it followed that they
Speaker 1: shouldn't be counted, and that would give the North more
Speaker 1: proportional representation in the House of Representatives. The three fifths
Speaker 1: compromise was designed to placate both sides. It gave each
Speaker 1: side part of what it wanted, and of course, into
Speaker 1: the bargain, it had the symbolic effect of treating slaves
Speaker 1: as only three fifths of human beings. The second compromise
Speaker 1: having to do with slavery was one which we barely
Speaker 1: remember today, and that was a guarantee in the Constitution
Speaker 1: that the international trade in slaves, importing slaves into the
Speaker 1: United States would be protected for twenty years from the
Speaker 1: time of the ratification of the Constitution. The idea here
Speaker 1: was that in the very deepest part of the South,
Speaker 1: especially South Carolina, slaveholders felt that they needed many, many
Speaker 1: more slaves than they already had in order to expand
Speaker 1: their economies. To do that, they wanted to be sure
Speaker 1: of a steady supply of enslaved persons brought from Africa,
Speaker 1: and they knew that international opposition to the slave trade,
Speaker 1: including opposition in the North, was growing and strong. It's
Speaker 1: important to keep in mind here that even many people
Speaker 1: who thought that slavery was morally acceptable at the time,
Speaker 1: including many in the North, drew the line at the
Speaker 1: idea of capturing people, turning them into slaves, and importing
Speaker 1: them across international waters to North America. It was not
Speaker 1: unusual for people to oppose the slave trade without opposing slavery.
Speaker 1: The Constitution guaranteed in an unamendable way that for twenty
Speaker 1: years slaves could still be imported. After that, it would
Speaker 1: be up to Congress to determine whether the slave trade
Speaker 1: would be ended, as indeed it was. The last compromise
Speaker 1: is one that it's easy to forget today, but that
Speaker 1: was in fact the most significant from the standpoint of
Speaker 1: Americans in the eighteen hundreds, and that was the compromise
Speaker 1: over the fugitive Slave Clause. The fugitive Slave Clause of
Speaker 1: the Constitution specified that if enslaved people were to flee
Speaker 1: from slave states in the South two free states in
Speaker 1: the North, not only would they not become free by
Speaker 1: entering into free territory, but beyond that, they would be
Speaker 1: returned to their owners. What was so fundamentally significant about
Speaker 1: the fugitive Slave clause was that it implicated the North
Speaker 1: fully in the practice of slavery. It meant that even
Speaker 1: states that abolished slavery themselves would still have to participate
Speaker 1: in the realities of slavery by lending their legal systems
Speaker 1: to the capture and return of enslaves to the status
Speaker 1: of slavery. You may ask, especially if you've seen the
Speaker 1: musical Hamilton, how could it be that Northerners at the
Speaker 1: Constitutional Convention, a few of whom were at least skeptical
Speaker 1: about the morality of slavery, could have agreed to these propositions.
Speaker 1: The short answer is compromise was necessary as a condition
Speaker 1: for actually getting the Constitution to be successfully agreed upon
Speaker 1: by all sides, and even Hamilton himself, who was perhaps
Speaker 1: not as fully committed to abolition as lin Manuel Miranda
Speaker 1: would have us think. Hamilton actively defended this compromise, and
Speaker 1: he described the three fifths proposition by saying the quote,
Speaker 1: it was one result of the spirit of accommodation which
Speaker 1: governed the Convention, and without this indulgence, no union could
Speaker 1: possibly have been formed. That sentence explicitly articulated what everybody knew.
Speaker 1: The Constitution was a compromise, and it was a compromise
Speaker 1: between slaveholders and non slaveholders and accommodation without which there
Speaker 1: could not have been a continuing union. What did Abraham
Speaker 1: Lincoln himself think about this compromise Constitution when he was
Speaker 1: a young man living in Illinois. The short answer is
Speaker 1: that Lincoln was a complete and total supporter of the
Speaker 1: compromise Constitution. When it came to politics, his choice from
Speaker 1: early on in his career was to support the Whig
Speaker 1: Party and to idolize the founder and leading figure in
Speaker 1: the Whig Party, a man called Henry Clay, famous in
Speaker 1: American history with the name the Great Compromiser. None of
Speaker 1: this is a coincidence. Lincoln didn't have to be a
Speaker 1: follower of Clay or a wig. In fact, as a
Speaker 1: self made young man at the frontier, he might naturally
Speaker 1: have become a follower of Andrew Jackson and the Jacksonian Democrats.
Speaker 1: Yet Lincoln's personality, his experiences, and his attitudes drew him
Speaker 1: to Clay. That made Lincoln into somebody who was fundamentally
Speaker 1: committed to the ideal of compromise. Lincoln's commitment to the
Speaker 1: Constitution as a compromised document can be seen in his
Speaker 1: first really important political speech, which he gave in eighteen
Speaker 1: thirty eight. The speech was a defense of what Lincoln
Speaker 1: called the perpetuation of our political institutions. His main point
Speaker 1: was that unless Americans would abide by the rule of law,
Speaker 1: the Constitution and the country were doomed to collapse. In
Speaker 1: the course of this speech, Lincoln insisted that the overarching
Speaker 1: value of constitutional life must be reason, what he called
Speaker 1: sober reason, cold calculating, unimpassioned reason, and this reason, Lincoln said,
Speaker 1: should be molded into a reverence for the Constitution and laws.
Speaker 1: The Constitution must be revered for its coldness, its lack
Speaker 1: of passion, and its commitment to reason. Starkly absent from
Speaker 1: this account was any commitment to the idea that the
Speaker 1: Constitution was fundamentally morally right. Lincoln, of course himself was
Speaker 1: not fond of slavery from the moment. We have a
Speaker 1: record of what he thought about it. He considered the
Speaker 1: practice cruel and preferred that it not exists. And yet
Speaker 1: Lincoln remained committed to the idea that slavery needed to
Speaker 1: be preserved in the Constitution. How did Lincoln and other
Speaker 1: mainstream figures in nineteenth century America reconcile these two thoughts.
Speaker 1: In Lincoln's case, the answer was one that he inherited
Speaker 1: from Henry Clay, who himself had inherited it from James
Speaker 1: Madison and James Monroe. This was the idea, the hope, really,
Speaker 1: the aspiration at best, that slavery would die what Lincoln
Speaker 1: called unnatural death. The theory here was that somehow, as
Speaker 1: if by magic, slavery would cease to be economically viable,
Speaker 1: and that Southerners would, as a consequence, stop relying on
Speaker 1: it as the basis for their economies. As a loyal
Speaker 1: son of the old Northwest and of Illinois, Lincoln himself
Speaker 1: was not committed to slavery, which he always viewed negatively,
Speaker 1: but the world in which he lived and the economy
Speaker 1: of the people whom he eventually sought to represent as
Speaker 1: he entered politics, depended on the expansion of the country
Speaker 1: across the continent, eventually all the way to California, and
Speaker 1: that expansion, in turn was completely bound up in the
Speaker 1: expansion of slavery. Over the course of the eighteen hundreds,
Speaker 1: the Constitution was therefore gradually reaffirmed as a blueprint for
Speaker 1: the capacity of the country to expand. In order to
Speaker 1: cross the continent and achieve what came to be called
Speaker 1: manifest destiny, the country needed to be unified. It couldn't
Speaker 1: be broken into two or three different mini republics, which
Speaker 1: might establish tariffs and other limitations on trade as among
Speaker 1: them now. Notwithstanding the felt necessity by Northerners, Westerners, and
Speaker 1: Southerners of maintaining unity, the eighteen hundreds still saw a
Speaker 1: succession of major crises, which played themselves out as crises
Speaker 1: around the Constitution. The Constitution, in practical terms, was a
Speaker 1: compromised deal between slaveholders and non slaveholders designed to facilitate expansion.
Speaker 1: But each and every time that the country expanded to
Speaker 1: include territory that would become part of a new state,
Speaker 1: the compromise came into doubt. If they were free, that
Speaker 1: might give the North an ultimate advantage and the capacity
Speaker 1: to alter the terms of the deal and make slavery
Speaker 1: less powerful or indeed eliminated. If, on the other hand,
Speaker 1: the new states were to be admitted to the Union
Speaker 1: as slave states, that would create circumstances where the slave
Speaker 1: states might be able over time to transform the Union
Speaker 1: into an entirely slave entity, in which the Northern states,
Speaker 1: even if they didn't have slavery, would be further and
Speaker 1: further implicated in the practice. Not by the design of
Speaker 1: seventeen eighty seven, but rather by gradual realism. A fifty
Speaker 1: fifty balance in the Senate had been established between slave
Speaker 1: states and free states, and the crises of the eighteen twenties, thirties, forties,
Speaker 1: and fifties, coupled with the compromises that purported to save them,
Speaker 1: were all focused on the question of the balance of
Speaker 1: the Senate as it would be shaped by the admission
Speaker 1: of new states. The paradox, then was that the compromises
Speaker 1: were necessary to maintain balance, and the balance was necessary
Speaker 1: to achieve expansion, but the expansion itself created doubt about
Speaker 1: the capacities of the compromise to exist. Throughout this period
Speaker 1: of time, Lincoln committed himself to a centrist position. He
Speaker 1: repeatedly denounced abolitionists as people who were doing something unwise,
Speaker 1: namely trying to undermine the very balance that was crucial
Speaker 1: to the existence of compromise. At the same time, he
Speaker 1: maintained a moral objection to slavery, one that he expressed
Speaker 1: more and more clearly during these years. The way for
Speaker 1: Lincoln and others to achieve some kind of coherence, if
Speaker 1: you can call it, that, was to remind themselves and
Speaker 1: everybody else that the Constitution was a set of rules
Speaker 1: that deserved reverence and obedience because everyone had promised to
Speaker 1: follow it as part of a compromised deal. The idea
Speaker 1: that you had a moral duty to keep an agreement
Speaker 1: which was itself all about an immoral arrangement, required tremendous
Speaker 1: conscious analysis of the problem and simultaneously tremendous denial of
Speaker 1: the fundamental immorality that underlay it. And it's not as
Speaker 1: though nobody in the United States at the time was
Speaker 1: thinking about the contradictions of this compromise. They were abolitionists
Speaker 1: in the United States in the eighteen hundreds made it
Speaker 1: extraordinarily clear that to agree to the compromise Constitution was
Speaker 1: to be committed to what the abolitionist Wendell Phillips called
Speaker 1: an agreement with death and a covenant with Hell. Before
Speaker 1: ending this episode, I want to share with you some
Speaker 1: fascinating material that I was able to discover with the
Speaker 1: help of my research assistance. This material consists of debates
Speaker 1: among African American abolitionists in the eighteen thirties, forties, and
Speaker 1: fifties about whether the original Constitution was itself so immoral
Speaker 1: that any accommodation to it made the person who accommodated
Speaker 1: also immoral. Consider as an example, a fascinating debate that
Speaker 1: took place on January sixth, eighteen fifty one, at the
Speaker 1: sixth State Convention of Colored Citizens of Ohio, held in Columbus.
Speaker 1: State conventions of free African Americans had become common by
Speaker 1: the eighteen fifties. In this particular convention, a debate broke
Speaker 1: out between two significant African American abolitionists, one a man
Speaker 1: called Hezekiah Ford Douglas, who had escaped being a slave
Speaker 1: at the age of fifteen and went on later to
Speaker 1: command his own unit in the Civil War, and on
Speaker 1: the other side, a man called William Howard Day, originally
Speaker 1: born free in New York, a graduate of Oberlin College,
Speaker 1: who would become the founder and editor of a weekly
Speaker 1: Cleveland newspaper with the extraordinary name The Aliened American. The
Speaker 1: subject of the debate was whether it was appropriate for
Speaker 1: African Americans who were free to vote in states where
Speaker 1: they were free to vote, such as Ohio. Hezekiah, for Douglas,
Speaker 1: took the view that it was immoral for a free
Speaker 1: African American to vote in a federal election, because to
Speaker 1: do so was to implicate oneself in the immorality of
Speaker 1: the Compromise Constitution. As Douglas put it, I hold sir,
Speaker 1: that the Constitution of the United States is pro slavery,
Speaker 1: considered so by those who framed it and construed to
Speaker 1: that end ever since its adoption. This was simply a
Speaker 1: historical fact, as Douglas and his listeners knew, the Compromise
Speaker 1: Constitution did enshrine slavery, and Douglas went on, we are, all,
Speaker 1: according to Congressional enactments, involved in the horrible system of
Speaker 1: human bondage by virtue of the fact that Congress had
Speaker 1: enacted the Fugitive Slave Act in fulfillment of the constitutional
Speaker 1: promise of the Fugitive Slave Clause. Douglas was saying everyone
Speaker 1: who voted for Congress was morally implicated in their perpetuation
Speaker 1: of slavery. His conclusion was, although African Americans were free
Speaker 1: to vote in federal elections in Ohio, they should not
Speaker 1: do so. William Howard Day fundamentally disagreed. He took the
Speaker 1: view that although the Constitution could be construed or interpreted
Speaker 1: as pro slavery, he refused to interpret it that way.
Speaker 1: In fact, he said, even though the Supreme Court of
Speaker 1: the United States has given aid to slavery by their
Speaker 1: unjust and illegal decisions, that is not the Constitution. Those decisions,
Speaker 1: he said, are not that under which I vote. Day
Speaker 1: drew an analogy between the Bible, which could be misinterpreted
Speaker 1: but should be interpreted correctly, and the Constitution, which had
Speaker 1: been misinterpreted, he said, but should be interpreted differently. Day
Speaker 1: went on to give a pragmatic explanation for why he
Speaker 1: wanted to rely on the Constitution as a weapon to
Speaker 1: fight against slavery. Sir, he said, coming up as I
Speaker 1: do in the midst of three millions of men in chains,
Speaker 1: and five hundred thousand only half free. I consider every
Speaker 1: instrument precious which guarantees to me liberty. I consider the
Speaker 1: Constitution a foundation of American liberties, and wrapping myself in
Speaker 1: the flag of the nation, I would plant myself upon
Speaker 1: that Constitution, and using the weapons they have given me,
Speaker 1: I would appeal to the American people for the rights
Speaker 1: thus guaranteed. William Howard Day was saying that whatever the
Speaker 1: immorality of a constitution might be, as applied, he preferred
Speaker 1: to wrap himself in the Constitution as a patriotic basis
Speaker 1: for making an anti slavery argument. You could see here,
Speaker 1: in almost all of its detail, a version of the
Speaker 1: argument that we are still having today as a country.
Speaker 1: Should the Constitution be interpreted in the light of the
Speaker 1: recognition of slavery that initially included, or should the Stution
Speaker 1: instead be read against the grain as a document that
Speaker 1: could be used to fight against slavery. Notwithstanding that history,
Speaker 1: in this particular debate, in the years before the Civil
Speaker 1: War and the eventual emancipation of slaves and the passage
Speaker 1: of the Fourteenth Amendment, Hezekiah for Douglas got the last word.
Speaker 1: Responding today's plan of wrapping himself in the flag, Douglas said,
Speaker 1: the gentleman may wrap the stars and stripe of his
Speaker 1: country around him forty times, and with a declaration of
Speaker 1: independence in one hand and the constitution of our common
Speaker 1: country and the other, may seat himself under the shadow
Speaker 1: of the frowning monument of Bunker Hill. And if the slaveholder,
Speaker 1: under the constitution and with the fugitive bill don't find you,
Speaker 1: then there don't exist a constitution. Hezekiah for Douglas was
Speaker 1: saying that even if a black man were to be
Speaker 1: in Massachusetts, where slavery was outlawed, and sitting under the
Speaker 1: Bunker Hill Monument in Charlestown, and wrapped in the stars
Speaker 1: and stripes, with the Constitution in one hand and the
Speaker 1: declaration in the other, he would still be treated by
Speaker 1: the law as an escaped slave, and the federal fugitive
Speaker 1: Slave law would still lead the slave catcher to grab
Speaker 1: him up in Massachusetts and treat him as a slave.
Speaker 1: In the next several episodes, I'm going to describe to
Speaker 1: you the crisis of Southern Secession, the war, and the
Speaker 1: consequences of Lincoln's three major acts of breaking the Constitution
Speaker 1: as it was known at the time. I'll suggest you
Speaker 1: that those acts eventually had a transformative effect on the
Speaker 1: Constitution as it stood up to the moment of the
Speaker 1: Civil War. That in turn will lead me to suggest
Speaker 1: that the Compromise Constitution that existed up to the Civil War,
Speaker 1: with its character of fundamental willingness to incorporate immorality, is
Speaker 1: not the Constitution that we still have today. For this episode, though,
Speaker 1: I want to leave you with the words of Frederick Douglas,
Speaker 1: the most important abolitionist of them all. Over the course
Speaker 1: of his career, Douglas had different points of view on
Speaker 1: how the Constitution should be considered. Early on, he was
Speaker 1: committed to the view that it was fundamentally immoral. Later,
Speaker 1: in the run up to the Civil War, he shifted
Speaker 1: to the alternative view that the Constitution should be read
Speaker 1: against its own words and against its own history, as
Speaker 1: a document that could promote freedom in between. However, in
Speaker 1: eighteen fifty Douglas describe things in words that seemed to
Speaker 1: my mind entirely accurate. Here's what he said about the
Speaker 1: Compromise Constitution. Liberty and slavery opposite, as heaven and hell
Speaker 1: are both in the Constitution, Douglas said, and the oath
Speaker 1: to support the Constitution is an oath to perform that
Speaker 1: which God has made impossible. The Constitution was, Douglas concluded,
Speaker 1: at war with itself. But those words that an oath
Speaker 1: to support the Constitution is an oath to perform that
Speaker 1: which God has made impossible a self contradiction, and the
Speaker 1: support of a document at war with itself precisely captures
Speaker 1: the situation that Abraham Lincoln would find himself in just
Speaker 1: ten years after Douglas spoke those words. When Lincoln was
Speaker 1: elected president, the Southern States seceded, and he was required
Speaker 1: to consider what the oath of office to support, protect,
Speaker 1: and defend the Constitution should mean in practice to him.
Speaker 1: To hear more about that, listen to the next episode
Speaker 1: of this podcast, The Broken Constitution, coming to you in
Speaker 1: one week. If you can't wait, you can listen to
Speaker 1: the next episode a few days early on the Unknown
Speaker 1: History podcast from Quick and Dirty Tips. Find it in
Speaker 1: the show notes or your favorite podcast app, and go
Speaker 1: ahead and pre order or by The Broken Constitution from
Speaker 1: your favorite local bookstore. It's out on November second. The
Speaker 1: Broken Constitution was produced by Nathan's SEMs and Quick and
Speaker 1: Dirty Tips, a proud part of McMillan publisher's home of
Speaker 1: far Strauss and Jeru, who are publishing my book