THE CROOKED PATH TO ABOLITION
Abraham Lincoln and the Antislavery Constitution
By James Oakes
It was not long after the federal Constitution was created in 1787 that many antislavery Northerners began labeling it a pro-slavery document. Parts of it did support slavery — the clause that counted a slave as three-fifths of a person, which gave the slave states greater representation in Congress and the Electoral College than opponents of slavery believed they deserved; and the fugitive slave clause, which required persons held to service who had escaped to free states to be returned to their owners.
Because these poisonous clauses seemed to enable Southern slaveholders to dominate the national government in the early decades of the 19th century, the rabid abolitionist William Lloyd Garrison eventually concluded that the Constitution was a “covenant with death” and “an agreement with hell.” Oddly this view of the Constitution as a pro-slavery document was what the fervent hard-line apologists for slavery, like Senator John C. Calhoun and Chief Justice Roger B. Taney, believed as well.
We have long known of this pro-slavery view of the Constitution, one that has been much emphasized at the present time. Less well known is an antislavery interpretation of the Constitution mounted by abolitionists and other opponents of slavery to counter the views of the Southern “slave power.” In “The Crooked Path to Abolition,” his very solid, carefully and rigorously argued book, James Oakes, a professor of history at the Graduate Center of the City University of New York, describes and analyzes the antislavery constitutionalism that emerged in a dialectical struggle with pro-slavery constitutionalism in antebellum America.
The Northern opponents of slavery began by emphasizing that the Constitution never mentioned “slaves” or “slavery,” that it never accepted the idea that there could be property in man and that with the ending of the international slave trade in 1808 it promised a future for the nation without the despicable institution. Although the antislavery advocates conceded that the Constitution gave no authority to Congress to interfere with slavery within the states, they stressed that it did grant power to Congress to curb and limit the institution in a variety of other ways.
In making their case that the Constitution favored freedom over slavery, the antislavery Northerners interpreted and parsed every part of it as imaginatively as possible, seeking to whittle away at the pro-slavery arguments while at the same time emphasizing every provision and every clause that could be used on behalf of freedom. Congress, they said, had the sole constitutional authority to prohibit slavery in the territories and, indeed, had an obligation to do so. It could also suppress the coastwise slave trade and abolish slavery in the District of Columbia. They claimed that many parts of the Constitution worked against slavery. The Fifth Amendment, for example, declared that no person could be deprived of liberty without due process of law, which the Northern opponents of slavery could use to stymie enforcement of the Fugitive Slave Acts. They stressed that the preamble of the Constitution granted the federal government the power to “secure the blessings of liberty” and that the Fourth Amendment guaranteed the right of people to be secure from unreasonable seizures. The antislavery Northerners argued that the privileges and immunities of citizens in Article IV, Section 2, were derived from the federal Constitution, not from the constitutions of the states, and thus Black citizens of the Northern states were entitled constitutionally to move freely from one state to another. They even invoked Congress’s war powers and the federal guarantee of a republican form of government to every state in Article IV, Section 4, to threaten slavery in the states. If the slave states ever seceded, the antislavery Northerners warned, they would forfeit their constitutional rights, and the free states would no longer be obliged to enforce the fugitive slave clause.
Gradually the antislavery advocates accumulated a variety of textual protections for freedom and limitations on slavery. Then they began moving beyond the text of the Constitution to invoke its spirit, which, they said, was mainly derived from the Declaration of Independence and its inspiring dedication to equality. By the 1850s the antislavery Northerners had built a powerful case for antislavery constitutionalism. They had created a “Constitution that made freedom the rule and slavery the exception.”
The Republican Party became the political embodiment of this antislavery constitutionalism, with Abraham Lincoln its most eloquent spokesman. So fearful were the Southern slaveholders of Lincoln and the Republicans that simply his election as president in November 1860 precipitated the immediate secession of many slave states. By Feb. 1, 1861, even before Lincoln took office in March, seven states had formed the Confederacy. Four more joined between April and June 1861.
Lincoln hated slavery as much as any abolitionist, but as an ambitious and sensitive politician in a radically democratic society he couldn’t ignore the feelings of the diverse constituents of Northern society. He believed in law and order and in the Constitution; and thus because of the Constitution’s ambiguity, he had to make his way along a very “crooked path” to achieve the ultimate extinction of slavery that he wanted. Despite all the backtracking and roundabout routes that Lincoln and his party followed, however, they never abandoned the central tenets of the antislavery constitutionalism that had developed over the previous half-century.
Through all his twists and turns Lincoln held firm to his belief that the guiding spirit of the Constitution was the principle of fundamental human equality proclaimed in the Declaration of Independence. Consequently, Oakes writes, “it became harder for Lincoln to distinguish his opposition to slavery from his baseline commitment to fundamental equality for whites and Blacks.” Because he came to realize that racial discrimination was really a means of supporting slavery, he moved toward a position of true racial equality. In the end, Oakes observes, “Lincoln became the first president to publicly endorse voting rights for Black men.”
In his final and perhaps most original chapter Oakes traces the winding route Lincoln followed in order to get to the 13th Amendment, which abolished slavery in the United States once and for all. A Republican-dominated Congress might muster the two-thirds vote to pass such an amendment, but ratification by three-quarters of the states would be more difficult. During the war, Lincoln’s position became more and more radical, but, Oakes says, Lincoln was skeptical all along that emancipating slaves, even in large numbers, would ever be enough; and he always remained committed to the belief that the slave states should abolish slavery on their own.
The Emancipation Proclamation and the treating of slaves as military contraband were never ends for Lincoln, but simply means to be used to pressure the states to free their enslaved populations on their own. Two of the border slave states that had not seceded — Maryland and Missouri — and then several of the seceding states that had been conquered and made loyal members of the Union — Louisiana, Arkansas and Tennessee — were nudged, urged and hassled into abolition. By the end of January 1865 there were 27 free states and nine slave states in the Union, exactly the proportions needed to ratify the amendment. Enough states had abolished slavery on their own to make acceptance of a nationwide abolition amendment by three-quarters of the states possible. “This amendment,” Lincoln said, “is a king’s cure for all the evils. It winds the whole thing up.”
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