Noah Feldman

THE BROKEN CONSTITUTION: Lincoln, Slavery, and the Refounding of America, by Noah Feldman. (Farrar, Straus & Giroux, $30.) Abraham Lincoln, Feldman contends, embraced a new, “moral Constitution” by purging the country’s original sin of slavery and re-establishing the nation on a more noble foundation. A professor at Harvard Law School, Feldman is “a lucid, provocative stylist” as well as “a prolific scholar and commentator on current affairs … well equipped to assess Lincoln’s constitutional record,” Sean Wilentz writes in his review. “‘The Broken Constitution’ displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past.”

Two days after he issued the Emancipation Proclamation, in September 1862, Abraham Lincoln suspended the writ of habeas corpus throughout the United States, subjecting all Americans to the threat of military arrest and indefinite imprisonment without trial. These steps—one toward a “new birth of freedom,” the other toward a military dictatorship—are at the heart of Noah Feldman’s “The Broken Constitution: Lincoln, Slavery and the Refounding of America.” The Constitution itself became a casualty in the war Lincoln waged to defend it, Mr. Feldman argues. “Civil war is the very definition of a failed constitution,” he writes. As Lincoln came to terms with this fact, he transformed the war into a struggle to establish an entirely new constitution on the moral principle of liberty for all.

A book review by Noah Feldman: Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 percent.

An op-ed by Noah Feldman: Who created the Constitution we have today? As a law professor, I’ve always thought the best answer was “the framers”: James Madison, Alexander Hamilton and the other delegates who attended the Philadelphia convention in the summer of 1787. The Constitution they drafted has since been amended many times, of course, sometimes in profound ways. But the document, I’ve long reasoned, has also exhibited a fundamental continuity. We’ve always had one Constitution. I no longer think this conventional understanding is correct. 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.

An op-ed by Noah Feldman: The University of Florida struck a blow against academic freedom last week by prohibiting three professors from testifying in a lawsuit claiming the state’s new election laws are discriminatory. But that doesn’t necessarily mean that the university’s action is a violation of the professors’ free speech rights. A court should find the decision unlawful, but might not. There’s a difference between academic freedom and free speech. As explained by former Yale Law School Dean Robert Post in a classic work, these two freedoms are based on different principles, and involve freedom from different kinds of constraints.

Book Review of Noah Feldman’s The Broken Constitution: Lincoln, Slavery, and the Refounding of America: Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.” Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

An op-ed by Noah Feldman, Felix Frankfurter Professor of Law: If a conservative majority of the Supreme Court votes to overturn Roe v. Wade, it won’t only be a disaster for people who need abortions. It will be a watershed moment in the history of the court. A body that has gained public legitimacy in the post-World War II era by making Americans freer would suddenly be making them less so.

An op-ed by Noah Feldman: It should be no surprise to anyone that the Biden administration’s commission on Supreme Court reform seems poised to offer recommendations that will not endorse packing the court. After all, the commission was born of Joe Biden’s desire during the presidential campaign not to commit himself to adding new justices. It was populated with distinguished legal scholars and members of the bar, most of whom share a meaningful commitment to the preservation of our legal institutions. But it doesn’t follow that court packing is permanently off the table. That’s because of the wild card introduced by the Mississippi antiabortion law that the Supreme Court will consider this fall and decide next spring.Put bluntly, if the court overturns Roe v. Wade, all bets are off.

An op-ed by Noah Feldman:Neil Gorsuch has big ambitions. Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland. Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

An op-ed by Noah Feldman: Retweets are not endorsements, goes the formula. But is a tweet linking to an existing article a republication of the article, legally speaking? A federal appeals court said last week that the answer may be yes, and on that basis revived a libel lawsuit filed by U.S. Representative Devin Nunes against the journalist Ryan Lizza. The consequences are significant, opening the door to a raft of lawsuits against people who post links on social media platforms or anywhere else.

A Sept. 18 rally outside the Capitol in support of those arrested in connection with the Jan. 6 insurrection is the first major test for law enforcement authorities since that infamous date. ...The rally comes as a bitter partisan divide has emerged over Jan. 6: Republicans have sought to discredit the work of the Jan. 6 select committee and some House Republicans have gone so far as to prop up and support the accused insurrectionists. ...Conversations with constitutional experts and lawyers with whom the Jan. 6 committee staff has consulted point to several potential obstacles to the investigation — the biggest one being Trump himself. ...But even with potential stonewalling by Trump, investigators will still be much less constrained when pursuing documents compared to when Trump was in office, according to Noah Feldman, a constitutional law professor at Harvard Law School who testified in the first public impeachment inquiry into Trump. “It's a lot simpler when you have an administration in office who is not the one you are investigating,” said Feldman.

An op-ed by Noah Feldman: When people say they are motivated by conscience, even implausibly, employers and government have no morally defensible choice but to take their word for it.

An op-ed by Noah Feldman: A day after the Constitution-flouting Texas antiabortion law went into effect, a divided Supreme Court ruled on Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice. The five most conservative justices agreed to an unsigned, one-and-a-half-page opinion that said the law might or might not be unconstitutional, but that given its unusual form, which delegates enforcement to private citizens instead of state authorities, it was too legally complicated to issue an emergency injunction blocking the law. In four separate dissents, the three liberals plus Chief Justice John Roberts said the law should have been blocked anyway. Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right. Later this year, the court will address a Mississippi antiabortion law that lacks the cleverly diabolical enforcement mechanism of the Texas law but is equally unconstitutional. Indeed, the day after the law went into effect and before the Supreme Court ruled, many non-lawyers who were so unfamiliar with court procedures that they didn’t know it would eventually issue a ruling on the Texas law had already concluded that they knew how the upcoming Mississippi case would come out.

An op-ed by Noah Feldman: Afghanistan wasn’t the only majority Muslim country that the Joe Biden administration lost in the last week. Establishing a functioning democracy in Afghanistan was hard — so hard it turned out to be impossible. Tunisia, which on Monday passed from the status of functioning democracy to effective autocracy, would have been an easy win for Biden’s nominal commitment to sustain democracy around the world — if the administration had bothered to pay meaningful attention to it. Instead, the administration stood by and did nothing while the elected president of the Arab world’s only democracy suspended parliament in violation of the Tunisian constitution and announced that the members of the parliament would henceforth be subject to arrest.

An op-ed by Noah Feldman: American Indian tribes have won a small victory at the Supreme Court. In the case, U.S. v. Cooley,  justices held that tribal police on a reservation can arrest and search people who are not Native American when there is probable cause to suspect them of a federal or state crime. The decision was unanimous, almost certainly for a quirky reason: The court’s liberals favor tribal sovereignty on reservations and the court’s conservatives favor expansive police power to stop and search. Conservatives also hate throwing out convictions on procedural grounds.

An op-ed by Noah Feldman: A lawsuit in Texas is challenging a hospital’s requirement that its employees get vaccinated against Covid-19 before returning to work. The case isn’t going anywhere, legally speaking. But the central claim is worth examining because it’s at the core of a lot of vaccine hesitation. The Texas plaintiffs, either working in concert or in parallel with a New York-based law firm that is in turn linked to the anti-vaccination movement, claim that administering mRNA vaccines now should be treated as a form of experimentation. And they maintain that requiring employees to be vaccinated eliminates their capacity to consent. This, they insist, amounts to a violation of the Nuremberg Code, a guideline developed in the post-World War II trial of Nazi doctors for crimes against humanity that says humans should not be subject to medical experiments without their consent. The Texas hospital is not violating that principle, because the vaccines at issue aren’t experimental — they have already gone through a series of clinical trials with voluntary subjects. Another reason the Texas plaintiffs’ argument has little legal purchase is that the Nuremberg Code isn’t the law, either under the Texas state statutes or federal law. The word “code” is a bit of a misnomer. Usually in legal context, a code is a body of law that has been authoritatively deposited or laid down by some responsible authority. The Nuremberg Code isn’t that.

An op-ed by Noah Feldman: Attorney General Merrick Garland is contesting a court order that would require disclosure of an internal Department of Justice memo sent to former AG Bill Barr. The subject: Why not to prosecute Donald Trump. Garland’s decision is a Rorschach test for anyone interested in restoring normalcy and credibility to the Department of Justice after the institutional bloodbath of the Trump years. From the standpoint of transparency and openness, the public should see the memo to better understand what went wrong in Trump’s DOJ. But from the standpoint of returning to the department’s traditional norms — including the norm of depoliticizing criminal prosecution decisions — the refusal to disclose is weirdly reassuring. It’s a sign that the Biden Department of Justice will reaffirm the department’s commitment to confidentiality and not use the DOJ, as Trump tried to, to score political points. I realize this second way of seeing the inkblot is counterintuitive and, to some, frustrating. So I’m not going to urge it on you. I’m just going to explain it, even while acknowledging the validity of the first, disclosure-oriented interpretation.