STARTING TOMORROW: Imitations of life!


More specifically, imitations of discourse: This very morning, Noah Feldman is breaking all the rules.

He's breaking the rules in the New York Times, where his guest essay says this:

FELDMAN (11/8/21): In April 1861, when the Civil War began, Lincoln was thoroughly committed to the compromise Constitution, which he had endorsed and embraced for his whole political life. Indeed, the month before, in his first Inaugural Address, Lincoln promised to preserve slavery as a constitutionally mandated permanent reality.


But in the 18 months that followed, Lincoln violated the Constitution as it was then broadly understood three separate times.

First, he waged war on the Confederacy. He did this even though his predecessor, James Buchanan, and Buchanan’s attorney general, Jeremiah Black, had concluded that neither the president nor Congress had the lawful authority to coerce the citizens of seceding states to stay in the Union without their democratic consent. Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based.

Say what? Abraham Lincoln "violated the Constitution" (as it was understood at the time) by waging war on the Confederacy? Is Professor Feldman allowed to say that?

Plainly, yes he is. And Feldman's a major public intellectual who is generally understood to be generally left of center. He's a highly regarded professor at Harvard Law.

At this point, full disclosure! In his essay, Feldman praises Lincoln for "violating the Constitution" in the way he did. He says that Lincoln's behaviors as president actually "created the Constitution"—the more desirable version of the Constitution which we have today.

He says that Lincoln's actions terminated the original "compromise Constitution"—the founding document which had been built around the acceptance of slavery. Presenting the gist of his forthcoming book, Feldman says this:

"Over the course of several years of research and writing, I’ve come to the conclusion that the true maker of the Constitution we have today is not one of the founders at all. It’s Abraham Lincoln."

That said, did Lincoln really kick the existing Constitution to the curb by "waging war on the Confederacy?" More outrageously, did he offend against the concept of "consent of the governed" when he decided to wage that war to keep a bunch of Southern states from leaving the Union?

Not being constitutional scholars, we don't know how to answer those questions. That said, they call to mind a minor debate which broke out in yesterday's New York Times. The question at issue was:

Was Robert E. Lee guilty of treason when he commanded the Confederate troops during that same Civil War?

Did Robert E. Lee commit reason? The question arose during a review of Allen Guelzo's new biography, Robert E. Lee: A Life. 

Professor Goldfield wrote the review. In passing, he offered this:

GOLDFIELD (11/7/21): Robert E. Lee did not fade away [after surrendering to Grant]. With the threat of a treason conviction hanging over him, supporters, including former abolitionists like Henry Ward Beecher, pleaded the case for clemency. On Christmas Day, 1868, President Andrew Johnson pardoned Lee.

Should Lee have been charged with treason? We've never exactly seen why. We say that for this reason:

In our view, there was and is nothing obviously wrong with wanting to secede from the Union. Many people favor secession movements today, including some progressives. 

In 1861, Lee cast his lot with the states which were seeking secession. In our view, the problem with this conduct wasn't the desire for secession itself. The problem was the reason for secession:

The problem was the way Lee, and those Southern states, were casting themselves on the wrong side of human moral history.

It wasn't the fact that Lee's native Virginia wanted to secede. The problem was the reason why the state wanted to do so. The problem was the institution it sought to defend and sustain. 

Judged by today's more fully developed moral standards, the reason for seeking secession placed its advocates on the wrong side of moral history. It was the motive that was wrong, not the desire to secede itself.

Today, no such distinction is viable. In comments to Goldfield's review, members of our own blue tribe savaged Lee as a traitor. 

For us in our self-impressed blue tribe, it doesn't suffice to say to say that Lee placed himself on the wrong side of human moral history. It must be the way it was for Woody Guthrie's Pretty Boy Floyd, for whom "every crime in Oklahoma was added it his name."

For clarity's sake, let's repeat:

In our view, there was nothing wrong with wanting to leave the Union in and of itself. Many people want their states or regions to secede today, for thoroughly moral reasons. 

The problem was the motive behind the desired secession. In our view, Lee put himself on the wrong side of moral history when he joined the secession movement which ended in a bloody war, one conducted by both sides.

We're drawing a fairly simple distinction, but few such distinctions can survive in our public discussions today. As a general matter, our public discussions tend to be "non-discussion discussions:"

They're imitations of intellectual life, performed by tribe against tribe.

Within that culture, it isn't enough to say that Lee made the wrong moral choice. He has to be "a traitor" too. We shout it long and loud.

Our public discussions tend to be tribal all the way down. Meanwhile, these imitations of discussion are presided over by a press corps, right-wing and mainstream alike, with remarkably few journalistic / analytical skills. 

Our society's non-discussion discussions are almost always imitations of life. We'll discuss this glaring cultural problem all week. Major experts sadly insist that this is the best we can expect from our badly flawed tribal species.

Meanwhile, a final question:

Did Abraham Lincoln do the right thing when "he waged war on the Confederacy?"

No such question has to be at issue today. The only thing at issue today is what we as a people, we as a nation, should now be trying to do.

Tomorrow: Imitation of discourse! At CNN, Keillar and McMorris-Santoro attempt, or perhaps pretend, to discuss inflation.

To read ahead, just click here. (Don't let your children see it.)

Full disclosure: According to experts, your lizard brain is going to insist that of course Lee was a traitor.

We can't say those experts are right. But that's what top experts have said.


  1. "Did Abraham Lincoln do the right thing when "he waged war on the Confederacy?""

    There's no such thing as "the right thing", dear Bob. Northern states invaded and defeated the newly formed country, the Confederate States.

    By the standard later established by the Nuremberg trials it was the 'supreme crime', the worst possible crime.

    But history is always written by the winners, so instead of being the worst possible crime, it's actually the greatest thing in the world.

    1. "history is always written by the winners", but comment threads are dominated by losers.

  2. This is hugely stupid. Somerby accepts Feldman's construction whole hog without any critical thinking or fact-checking at all. Perhaps because it agrees with his own preconceived ideas or perhaps because Feldman chips away at Lincoln in a manner that pleases Somerby.

    First, Lincoln did not wage war on the South because it seceded. He waged war on the Confederacy because South Carolina fired on Union troops at Fort Sumter in the name of the confederacy. That was an act of war committed by the South.

    Secession occurred in January 1861 but Lincoln's inauguration was in March and the attack on Fort Sumter was in April, following several other attacks on forts by the South.

    The Library of Congress timeline of the Civil War says:

    "When President Lincoln planned to send supplies to Fort Sumter, he alerted the state in advance, in an attempt to avoid hostilities. South Carolina, however, feared a trick; the commander of the fort, Robert Anderson, was asked to surrender immediately. Anderson offered to surrender, but only after he had exhausted his supplies. His offer was rejected, and on April 12, the Civil War began with shots fired on the fort. Fort Sumter eventually was surrendered to South Carolina."

    Second, no one refers to the U.S. Constitution as the "Compromise Constitution" except diehard Southern confederacy apologists. That is loaded language that signals the editorial writer's political stance. Once adopted, the constitution of 1787 became the US Constitution and is THE constitution of our nation. Lincoln didn't violate that constitution by defending our nation against the predations of the seceded Southern states. He did his job in accordance with the constitution.

    Instead of questioning this odd framing, Somerby should be asking why such an editorial with its curious slant was written -- what are the author's motives -- and why was it published? It certainly doesn't help the tenor of our times to feature crap like that, suggesting that an important president violated the constitution, implying that if other bad actors today choose to secede and attack our nation, the president should turn a blind eye and ignore their actions.

    And perhaps even ignore the assault on our nation and its constitution that took play on 1/6! This specious article may have the intent of swaying popular opinion in support of the miscreants who tried to disrupt the orderly transition of power within our country, because even Lincoln didn't follow the constitution -- except he did.

  3. Somerby calls Feldman a Harvard liberal, but is he really?

    Feldman himself says:

    "I would call myself a moderate centrist liberal. I'm from Massachusetts, so I'm a registered Democrat and have been my whole life. But I worked for what was effectively the Bush administration when I went to Iraq."

    He then goes on to talk about his time working for Justice Souter, a Republican appointee to the Supreme Court.

    You evaluate a person's politics by their behavior and not by their claimed affiliation. Somerby claims to be liberal too, but nothing he writes here supports that claim. And Somerby too is from Massachusetts with a legacy of voting Democratic, but has lived in Baltimore MD, a Southern State, most of his life. He has been defending Souther viewpoints here for decades and not only defended Trump and criticized liberals but repeated conservative talking points here before and during the 2016 election. It would be hard to claim he is even a moderate or centrist Democrat at this point.

    There are several wolves in sheep's clothing these days, folks claiming to be Democrats while doing the right's dirty work, among them Glen Greenwald and Bari Weiss and Matt Taibi, who wrote:

    So, no, I wouldn't accept Somerby's characterization of Felman as "left of center".

    1. I don't think those journalists claim to be Democrats.

    2. I think you should have your head examined, lady. Take a warm bath or something. Try to get it together a little bit. You're not doing too good.

  4. Treason was defined in the constitution and this definition has never been amended. Lee levied war on the United States and so he was a traitor.

    The anonymous comment beginning "This is hugely stupid" correctly describes the beginning of the Civil War. Lee should have been punished severely. His plantation was seized and turned into a national cemetery, which was good but not enough.

    The land of every slaveholder who joined the rebellion should have been confiscated and distributed to the freedmen.

    1. In that era, our leaders held the strange and inexplicable notion that the very best way to bring the nation today was to try and bring the nation together.

    2. Sure, Cecilia. They tried to bring the nation together…after splitting it apart and causing the deaths of 750,000 in a bloody war. Unfortunately, the death of Lincoln put an end to any mood for reconciliation, at least in the short term. Check out what the Union did to the South subsequently during Reconstruction.

  5. "Should Lee have been charged with treason? We've never exactly seen why. We say that for this reason:

    In our view, there was and is nothing obviously wrong with wanting to secede from the Union. Many people favor secession movements today, including some progressives."

    Seceding from the union doesn't require anyone to fire upon the troops and civilians who remain members of the union. Lee didn't merely secede, but he waged war against the union.

    Somerby and Feldman both ignore that the South fired first in the Civil War, at a point where Abraham Lincoln was attempting to avoid war despite provocation by the South, which had been attacking U.S. forts since before he took office.

    The only question is whether Lee should have been treated as an enemy combatant or as a disloyal citizen (e.g., as someone who had committed treason). That was made moot by Johnson's pardon.

    The Southern states comprising the confederacy lost the war and were occupied territory after conceding to the North. They were offered a pardon to all but the top military and confederate government leaders if the states wished to write a new constitution making slavery illegal and requesting to rejoin the union. That is what the Southern states decided to do, in lieu of remaining occupied territory after they lost the war. They were not treated as traitors but as members of acquired territory, much as the areas of the US acquired via war in the Southwest were treated.

    I think it is natural that those in the North would consider Southerners to be troublemakers and traitors, given that they returned to the US after the Civil War. When you look at the costs of that war and the reason why it was fought, the South deserved every ounce of animosity it received from the North. I agree that the South got off easy in the aftermath.

    But Somerby pretends that this was about secession and not the acts of war committed by the South. That is just plain factually inaccurate. And this does demonstrate why it is a bad idea to allow the South to teach its children a distorted version of historical events.

    The desire of conservatives to justify their current acts of treason by referring to the past malfeasance by Southern states is transparent. There is no excuse for the attack on a valid election and the Capitol building and congress members who were doing their elected duty. No excuse whatsoever.

  6. I think I've heard it all now.

    The same people who ostentatiously plant an American flag pin to their $5000 suit lapels and have been torturing this country for decades with their demands that school children recite the Pledge of Allegiance:

    ONE Nation, under God, INDIVISIBLE...

    now talk openly about seceding.

    Ted Cruz told students Texas should secede from the US and take the military and NASA with them if the Democrats 'destroy the country by ending the filibuster, packing the court and making DC a state'

    We are a UNION. Secession is illegal.

  7. “Abraham Lincoln "violated the Constitution" (as it was understood at the time) by waging war on the Confederacy?”

    First of all, Feldman fails to show that Buchanan’s attorney general held the consensus view on that.

    Secondly, after declaring itself seceded, South Carolina seized federal property, and then fired on Fort Sumter when it resisted. Immediately after Fort Sumter, ‘the Confederate Congress proclaimed that "war exists between the Confederate States and the Government of the United States, and the States and Territories thereof".’ If there was any declaration of war, it was mutual.

    Thirdly, even if “Coercive war, they had argued, repudiated the idea of consent of the governed on which the Constitution was based”, this ignores the aforesaid hostile actions committed by the South. Surely the federal government has a right to defend its property?

    Finally, how was the Union to obtain the consent of the Confederacy, when the Confederacy had by the time Lincoln took office opted out of the institution whereby its consent could be obtained, namely the US government?

    1. "Surely the federal government has a right to defend its property?"

      Whoa, and suddenly 'property' becomes sacred to a dembot.

    2. The federal government holds property in trust for the citizens of our nation. The property doesn't belong to individuals or corporations, thus it is not private property. Conservatives don't love all property -- just private property. Look at the ongoing attacks on BLM and the federal government by conservatives and extremists in the West and Northwest.

    3. Yes, this super-sacred invaluable 'property' was definitely worth a couple hundred thousands of dead and many more maimed to the good citizens of the Northern states.

      They were completely happy to die for it, as demonstrated by numerous draft riots.

    4. The North was attacked by the South, not vice versa.

    5. Mao,
      So you are intimating it was North who attacked the modern Conservative movement?

    6. The South, dear Corby, didn't attack the North. The South wanted a foreign military installation off its territory. A perfectly sensible demand, in our opinion.

      If the North didn't want a war, all it had to do was moving the garrison out of there.

      Normally, we try to avoid explaining the obvious things, but okay, once in a while...

  8. Today, heroes are not appreciated; victims are ascendant. The incredibly vital achievements of Jefferson and Washington are disappeared. They are totally defined by the fact that they owned slaves. Lee's heroism is wiped out, because he was on the wrong. Even Lincoln's heroism is negated, because he wasn't sufficiently committed to ending slavery.

    This is tragic, especially for young people. I want my children and grandchildren to be inspired by heroes, not by victims.

    1. So heroes like Micah X. Johnson, and not the police unions who cry about how police are criticized.
      Got it.

    2. Greta Thunberg >>>>>> Every fossil fuel corporation executive.

    3. Lee was a hero? How about the Germans who resisted the Soviet invasion in 1945? Were they heroes, too?

    4. Caesar -- Lee was a hero because of his individual actions. There may be some particular Germans who acted heroically, albeit in an evil cause.

    5. David in Cal,
      I assume you mean real victims, but not the phonies on the Right who cosplay as victims. Because that would be "bigotry" against Republicans.

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