In his first inaugural address in 1861, President Abraham Lincoln opened by insisting that he was fully prepared to protect the Constitution’s guarantee of slavery.

He said this without any “mental reservation” and spoke of it in terms of an “oath I have registered in heaven” to protect the Constitution.

Six months later, Lincoln wrote a letter in which he described one of his generals emancipating slaves in an area under that general’s control. Lincoln reversed the order and fired the general, saying “to emancipate slaves like this is an act of dictatorship.”

Months later, Lincoln flipped his position 180 degrees and issued a draft of the Emancipation Proclamation, said Noah Feldman, Harvard Law School professor, historian, author and scholar.

Harvard law professor Noah Feldman meets with the Deseret News editorial board.
Harvard law professor Noah Feldman meets with the Deseret News editorial board in Salt Lake City on Wednesday, Sept. 14, 2022, one day after delivering the Constitution Day lecture at BYU’s Wheatley Institute. | Jeffrey D. Allred, Deseret News

“By Lincoln’s own rights a year before he did it, it would have been an act of dictatorship, in violation of his oath,” Feldman said. “So Lincoln had to reinterpret the Constitution in light of the necessity and the circumstances of the moment. By doing that, he reached a conclusion that I think today we essentially all agree was an act of profound moral correctness. ... He became known forever as the person who freed the slaves.” 

Feldman made the statement during his 2022 Constitution Day lecture Tuesday at Brigham Young University. The event in the Hinckley Center was sponsored by the Wheatley Institute, BYU’s College of Family Home and Social Sciences and the BYU Law School.

Related
Guest opinion: Constitution Day is a good time to assess our federal government
Many of the Founding Fathers were actually fathers. Here’s how that influenced the Constitution

Several leaders of The Church of Jesus Christ of Latter-day Saints attended the event, including Elder Jeffrey R. Holland and Elder D. Todd Christofferson of the Quorum of the Twelve Apostles, along with Elder Christofferson’s wife, Sister Katherine Christofferson; Elder Clark Gilbert, a General Authority Seventy and Church commissioner of education; Brother Ahmad S. Corbitt, first counselor in the Young Men general presidency, and his wife, Sister Jayne Corbitt. BYU President Kevin Worthen and his wife, Peggy, as well as other university administrators and officials, also attended the event.

Feldman was introduced by Judge Thomas B. Griffith, a former federal judge of the United States Court of Appeals for the District of Columbia Circuit.

Related
Biden names former BYU general counsel to new Supreme Court commission
Episode 99: Former federal Judge Thomas B. Griffith on the importance of religious liberty and political civility

Feldman titled his remarks, “The Constitution Under Pressure: Lessons from Abraham Lincoln,” and focused on themes from his book, “The Broken Constitution: Lincoln, Slavery & The Refounding of America.” 

The audience gives applause at the end of Noah Feldman’s Constitution Day lecture at BYU’s Wheatley Institute.
The audience gives applause at the end of Noah Feldman’s Constitution Day lecture at BYU’s Wheatley Institute on Sept. 13, 2022. Several leaders of The Church of Jesus Christ of Latter-day Saints attended, including Elder Jeffrey R. Holland, front row middle, and Elder D. Todd Christofferson, left, of the Quorum of the Twelve Apostles. | Jeremy Lewis, Wheatley Institute

When the Constitution was ‘broken’

Speaking without notes, Feldman said there’s never been a more “intense or transformative period in the history of the U.S. Constitution,” and simultaneously a more “tumultuous period of time in the history of the Republic” than the period between March 1861, when Lincoln was sworn in as president, and Jan. 1, 1863, when he formally issued the final draft of the Emancipation Proclamation.

“The period I’m talking about today is where the Constitution was broken,” the Harvard law professor said. “Initially and most fundamentally, it was broken by the secession from the union of the Confederate States. Then, as I’m going to suggest in complex ways, Lincoln had to engage with the Constitution in terms that could be categorized as themselves breaking the Constitution.”

Feldman outlined three fundamental problems Lincoln faced in the first two years of his presidency regarding the Constitution.

  1. What was he as president authorized to do under the Constitution regarding the secession of the southern states?
  2. What should he do about armed resistance by the American people to Union troops?
  3. His decision to exercise his own authority as president to emancipate enslaved people in the Confederacy.

Problem No. 1

If Lincoln interpreted the Constitution the way previous President James Buchanan had, his duty was to stand back and allow the southern states to secede.

Feldman said Lincoln himself had to figure out how to interpret the Constitution. He realized he needed to go to war and force the southern states back into the union, whatever the cost.

“In order to fulfill an oath you’ve taken to the Constitution, you first have to interpret that document to know what it demands of you,” Feldman said.

Noah Feldman, author, historian, scholar and professor of Harvard Law School, delivers a Constitution Day lecture at BYU’s Wheatley Institute.
Noah Feldman, author, historian, scholar and professor of Harvard Law School, delivers a Constitution Day lecture at BYU’s Wheatley Institute on Sept. 13, 2022. | Jeremy Lewis, Wheatley Institute

Problem No. 2

Feldman explained how Union troops being transported into Baltimore were met by angry mobs and violence broke out. Soldiers and people were killed. Lincoln’s federal troops were made to look like the British during the Revolutionary War.

What could Lincoln do? The people in the mobs were not technically at war with the country. Could he charge them with crime, arrest them and put them in jail?

Lincoln authorized his generals to pull the Constitution’s “emergency cord,” called the suspension of the writ of habeas corpus, which means any federal official with authorization could arrest anyone causing problems and hold them in prison indefinitely.

A provision in Article One of the Constitution allows the writ to be suspended in times of war or rebellion.

“He had to interpret the Constitution in the light of his own beliefs about what was ‘necessary’ — that was his key word — to save the Union,” Feldman said. “You should be seeing why there is something challenging about the idea that I have to interpret the document in order for me to conform to my oath to follow it.”

Problem No. 3

What made Lincoln a “figure for the ages,” Feldman said, was his decision to exercise his own authority as president to emancipate enslaved people in the Confederacy.

Lincoln learned the principle of necessity in suspending the writ of habeas corpus, which included taking steps that under other circumstances would have violated the Constitution, but were necessary to achieve the goal of winning the war and preserving the Republic.

“That form of reasoning led Lincoln to the greatest moral accomplishment, I think it’s fair to say, of any president and perhaps the greatest moral accomplishment of any one person in the United States government,” Feldman said.

Harvard professor Noah Feldman meets with the Deseret News editorial board in Salt Lake City on Wednesday, Sept. 14, 2022.
Harvard professor Noah Feldman meets with the Deseret News editorial board in Salt Lake City on Wednesday, Sept. 14, 2022. | Jeffrey D. Allred, Deseret News

Obeying ‘oaths registered in heaven’

Feldman concluded his remarks with the question: What is the lesson for us from this extraordinary act by Lincoln?

To be clear, he said the lesson is not that whoever is the president of the United States has the authority to reinterpret the Constitution in violation of what everybody else thinks that means in order to reach the result that he likes.

“The lesson is that in the crucible of existential crisis, the crisis that could have ended the Union, the crisis that ended the lives of so many people in the war, someone who has a deep commitment in conscience to obeying an oath registered in heaven doesn’t have all the answers simply from the fact that he or she says I will follow my oath. That’s just the first step,” he said.

“You then have to understand what your oath is to, and you have to interpret the content of your commitments in order to live up to them. In that, we need all the help we can get. We need the guidance of our elders and betters. We need the wisdom of tradition and the ages. We need a clear moral compass. We need to be cognizant of sources of authority. And in the end, in the final analysis, it will be up to each of us within our own conscience to make sure that we can look our Maker straight in the eye and say that we sincerely and truthfully obeyed our oaths that we have registered in heaven.”

Noah Feldman, a Harvard Law School professor, listens to a question from a student.
Noah Feldman, author, historian, scholar and professor of Harvard Law School, listens to a question during a Q&A session after giving a Constitution Day lecture at BYU’s Wheatley Institute on Sept. 13, 2022. | Jeremy Lewis, Wheatley Institute

How to defend the Constitution today

Following his remarks, Feldman entertained a few questions from students in the audience. One student asked how young people might defend the Constitution in a respectful way that offers hope in discussions with peers.

Feldman said the best approach begins with honesty, acknowledging that sometimes the wisest and best people don’t always get elected. America’s history has also witnessed peripheral voices like Dr. Martin Luther King Jr. issue calls of justice that are heard and incorporated into the national narrative.

View Comments

“That’s one reason that I have faith in both senses of the word faith — a civic faith and a civic religious faith — in our possibilities as a country, not because our Constitution is perfect, because our Constitution, inspired though it may be, nevertheless has to deal with real human beings in the real world, and humans have to interpret it and humans are not perfect,” Feldman said. “It follows that as a way of doing real life decision-making, the Constitution will not always produce in every instance a perfect result.”

Feldman added the example of Joseph Smith’s belief in an inspired Constitution while he was in prison.

“So the takeaway is clear,” he said. “One may have a justified, profound faith in the capacities of our Constitution, even in a moment where the Constitution is not achieving what it is meant to achieve. Our Constitution exists in aspiration and in hope, and also, we hope and aspire in practice.” 

Feldman’s Constitution Day lecture Tuesday was not his first visit to BYU. He delivered a 2009 campus forum address titled, “Few are Chosen: Comparative Religion and the Public Sphere.”

Related
Talk about faith, scholar tells BYU
Join the Conversation
Looking for comments?
Find comments in their new home! Click the buttons at the top or within the article to view them — or use the button below for quick access.