Vol. 9 No. 11 (November 1999) pp. 509-512.

FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE by Mark E. Brandon. Princeton: Princeton University Press, 1998. 248 pp. Cloth $42.50.

Reviewed by Rogers M. Smith, Department of Political Science, Yale University.

At the dawn of this century, when much of political science was constitutional law, Edward S. Corwin made Princeton's Politics Department the disciplinary center for studies of what the American constitution meant; and so it remained under his successor, Alpheus T. Mason. In the late 1960s, Mason's successor, Walter Murphy, began to father what has sometimes been termed the "Princeton School" of constitutional studies, increasingly focused on a different question. That question, arguably more suitable for political science, has been, "what is the character and worth of written constitutionalism as a system of community formation and governance?" This question, pursued in various ways by Princeton-connected scholars including Sanford Levinson, James Fleming, Will Harris, Sotirios Barber, Robert George, and others, as well as by Murphy himself, is an intrinsically excellent one. There is, as Harris has suggested, something ineradicably absurd about trying to base a political community and its government on any single, inevitably spare and progressively outdated, written text. Yet written constitutionalism is burgeoning wildly as a system of governance in today's world, and most of us regard that as a good thing. Thus we need to look closely at what written constitutionalism entails.

Mark Brandon's generally excellent first book is the latest Princeton-based contribution to this line of inquiry. Brandon wisely views written constitutionalism as a distinctive political enterprise, an experiment in achieving effective yet limited government over time (recognizing that the limits can represent many values, not necessarily "liberal" ones). He knows that if written constitutionalism is to work at all, it must succeed in at least partly structuring broad-ranging debates over political power and purpose, not just judicial decisions. He recognizes, too, that written constitutionalism may not after all be such a bright idea as a way to run a government. And in the most original and important parts of his analysis, he asks, what constitutes failure in this enterprise of written constitutionalism? He grounds his inquiry by probing whether, and in what ways, slavery, the Civil War, and Reconstruction represent failures in the American experiment in written constitutionalism. He concludes, correctly I think, that these episodes in U.S. history do indeed display constitutional failures. I would not, however, characterize the failures quite as he does, and I also have one important disagreementwith the historical picture he paints.

Brandon usefully distinguishes four types of constitutional failure: failures of constitutionalism, in which principles inherent in the very enterprise of written CONSTITUTIONALISM are violated, such

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as, for example, when the written text is simply ignored; failures of A PARTICULAR CONSTITUTION, when some or all of the specific substance of one

constitution is found wanting, even though the enterprise of written constitutionalism is still embraced; failure of a CONSTITUTIONAL ORDER, in which a political regime that relies on a written constitution breaks down, but not because either the enterprise of written constitutionalism or its specific substance have been broached or rejected; and failures of CONSTITUTIONAL DISCOURSE, in which constitutional interpreters acting all in good faith cannot produce coherent interpretations capable of persuading others and solving problems. One could quibble over how ultimately distinct these categories are, but they represent a better analytical framework than any we have had.

In Brandon's view, slavery and the crisis it precipitated represented chiefly a failure of the constitutional order, the broader political regime built by reference to the American written constitution. To a lesser degree the war was also borne of a failure of constitutional discourse, as different American groups elaborated reasonably coherent proslavery and antislavery interpretations that were a source of division, not unity, for the nation. Brandon does not see the gathering storm as itself a sign of the failure of written constitutionalism in America, because most Americans did appeal to coherent constitutional interpretations; nor does he see it as really a

failure of the particular constitution, because he believes the Constitution was written ambiguously in regard to slavery in ways that made a range of lines of development legitimate. That ambiguity might represent a moral failure, but Brandon does not regard it as a constitutional one.

Controversially, Brandon also sees secession as one of those possible developments that was fundamentally constitutional, while he disparages Lincoln's contrary claim hat the Union had to exist in perpetuity as anti-constitutional. And he sees Reconstruction as a failure of constitutionalism, in that Republicans sought to reconstruct the constitutional system without complying with Art. V procedures or, Ackerman notwithstanding, other appropriate constitutional processes. I largely agree with Brandon about Lincoln's claims for perpetual Union and about Reconstruction, unpopular as those sentiments are. I do think that even the decisions of antebellum courts, let alone broader American political debates, raise serious questions about how far written constitutionalism really limits political conduct, especially when the particular constitution is as ambiguous and compromised on key issues as the American one was. I also think those ambiguities represent serious inadequacies in the substance of the American Constitution from the outset. Still, Brandon's contrary judgments that the range of discretion is not so great as to make

constitutionalism and "this Constitution" failures are defensible.

I am not fully satisfied, however, with his treatment of secession, and that is because I am very unsatisfied with his treatment of Lincoln, the one area of the book where he makes not only debatable judgments but some serious errors of omission and commission. Brandon's Lincoln is, unfortunately, an all too common one in current scholarship. His Lincoln is a firm

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opponent of racial equality, a firm defender of slavery in the states where it exists, and a rather weak opponent even of the expansion of slavery to the territories. Brandon notes, rightly, that Lincoln would have permitted territories to vote for slavery once they had petitioned for statehood, but only if slavery were not already present there. Brandon sees this position as little different from Stephen Douglas's and believes both men pumped up the public into believing this minor difference mattered more than it did. He thinks Lincoln's real goal was to save the Union and he says that after the war Lincoln "disavowed even the most rudimentary of political rights for blacks" (p. 212).

Though he is a careful scholar in other regards, Brandon's view seems based on a very partial reading of Lincoln's works and the secondary sources he cites. He dismisses too readily Lincoln's repeated insistences that the Constitution must be understood to put slavery on the path of extinction by noting that Lincoln also said the national government did not have power to eliminate slavery in the existing states. Yet everyone then believed, quite credibly, that if the slave states were eventually surrounded by and outvoted by free states, the institution would almost certainly die out; and everyone then believed, quite credibly, that Lincoln's policy toward the territories would mean that no slave states would emerge from them, unlike Douglas's. Hence the south rightly perceived Lincoln's election as setting the

Constitution and the country on the path toward slavery's extinction. Like so many others, Brandon makes much of the letter to Horace Greeley where Lincoln said his highest goal was union. But though he knows Lincoln had the Emancipation Proclamation ready to go when he wrote that letter, Brandon refuses to draw the obvious inference: that Lincoln wrote it to get Greeley off his back until the correct minute to issue the Proclamation had come. Brandon ignores Lincoln's earlier statements that the Union must be preserved not only in the integrity of its territory but also its principles; Lincoln's statement after his election that he would rather be assassinated than to preserve the union on any other basis than a ban on the extinction of slavery to the territories; and Lincoln's adamant refusal to save the union with slavery when he could have done so, by simply giving the south the assurances it wanted that slavery would be protected throughout the land. (Many of Lincoln's northern supporters would have been outraged, but the Union would have been saved, and Lincoln might well have been reelected with some of the61% of the vote he lost in 1860).

Most painfully, Brandon also ignores the fact that, far from disavowing all political rights for blacks after the war, Lincoln publicly endorsed giving the franchise in Louisiana to blacks who had fought in the war or were educated. He did so in the last speech he ever gave, because when John Wilkes Booth heard Lincoln promise even a limited black franchise, he resolved to kill the President as soon as he could. And he did. To forget this episode is to expunge one of the most momentous moral as well as political events in our national history. Brandon is nonetheless right that Lincoln's arguments against secession went too far from a strictconstitutionalist standpoint. Yet Lincoln had another argument against secession, which cannot surface in Brandon's analysis, because he does not take Lincoln's view of the Constitution's values seriously. If one takes the hardly inescapable yet not unsustainable antislavery reading of the Constitution that Lincoln did, then the national government is under an obligation to adopt polices that put slavery on the path

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of gradual extinction. Permitting the secession of American slaveholders to keep slaves in bondage in perpetuity would have profoundly violated that obligation. Secession for other reasons might be constitutionally defensible, but not, on this view, to preserve slavery. (This, predictably, is my own view, though I acknowledge, as Lincoln did, not that it cannot be defended as a matter of original intent).

I therefore do not think Lincoln's opposition to secession represents a violation of the principles of written constitutionalism in all regards, as Brandon does. But I accept that Lincoln strained if he did not break various constitutional provisions to save the Union as he understood it, and that these strains call into question the capacity to sustain a regime while conforming fully to principles of written constitutionalism. Though I disagree with his characterization of Lincoln, I agree emphatically with Brandon's broader message: that written constitutionalism is an enterprise that can fail as well as succeed, and that we need to study written constitutionalism as a political experiment, understanding its forms of failure as well as its contributions, if we are to gain insight into what we lose and gain by such a system of governance. In advancing such inquiry, Brandon's book is a credit to his Princeton mentors and himself as well as a valuable contribution to public law and political science.