MONDAY, NOVEMBER 8, 2021
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.