Author Interview--James Oakes (The Crooked Path to Abolition) Part 1

Niels Eichhorn Discussion

Hello H-CivWar Readers:

Today we feature James Oakes to talk about his new The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution, published by W. W. Norton in January 2021.

James Oakes is a Distinguished Professor of History at the Graduate Center of the City University of New York. He received his Ph.D. from the University of California, Berkeley. He has published The Ruling Race (1982); Slavery and Freedom: An Interpretation of the Old South (1990); The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics (2007); and Freedom National: The Destruction of Slavery in the United States, 1861–1865 (2012).

To start, Jim, you have written quite a few books, how did you decide to write one on Lincoln and slavery and the Constitution?

JO: I never expected, or planned, to write this book.  Do we really need another book on Lincoln?  In some ways, Crooked Path was—like emancipation—the product of contingent circumstances.  I had written an essay that is now the last chapter of the book, on Lincoln and the origins of the Thirteenth amendment.  My editor read it and suggested I turn it into a short book.  I had already published an essay on Lincoln and race that seemed relevant, and I was finishing up another essay on Lincoln and emancipation in the first year of the war.  So I was sitting on three essays that would become chapters when my editor made the suggestion.  At the same time I was teaching a documents-based seminar on antislavery constitutionalism, in which Lincoln was tangential.  So when my editor made the suggestion I decided to write a couple of new chapters on antislavery constitutionalism and to revise the essays I’d written in their light.  Hence Lincoln and the Antislavery Constitution.
But there’s a longer intellectual biography to the book, going all the way back to my years in graduate school.  I was interested in legal history and was reading books by Bill Wiecek and Robert Cover on slavery, antislavery and the Constitution.  At Berkeley I took a class on the history of the common law and studied with a couple of superb legal historians, Jim Kettner and John Noonan, both experts on slavery and antislavery.  I was also strongly influenced by Eric Foner’s first book on free labor ideology, which has a compelling chapter on Salmon Chase and the antislavery Constitution.  My interest in what might be called the political history of the law was reinforced by Stan Katz when I was teaching at Princeton.  As a “preceptor” (basically a faculty TA) for his is course on American legal history I came to think of think of law as a connecting link between social and political history.  At one point Stan invited Paul Finkelman to campus to present an early version of his pivotal essay on slavery and the founders, and I pretty much accepted Paul’s neo-Garrisonian interpretation of the Constitution as a proslavery document.  I even published an article to that effect.  At that point, however, I was primarily interested in slavery.  
My interest in
antislavery constitutionalism was rekindled when I wrote a book on Lincoln and Frederick Douglass.  Anyone who studies Douglass has to come to terms with his famous and very public break with Garrison.  Douglass’s conversion to the antislavery interpretation of the Constitution intrigued me, although my initial thought was that his analysis of the Constitution was brilliant but, alas, rather eccentric.  It no longer seems eccentric to me.
It wasn’t until I started working on
Freedom National that I began to notice that, from the earliest months of the war, Republicans were uniformly claiming that the Constitution empowered to federal government to adopt a number of antislavery policies.  I started pushing backward to find the origins of the Republican interpretation.  Suddenly the stuff I had read in graduate school years before became newly relevant.  My first outing on the subject was a short book on antislavery politics called The Scorpion’s Sting.  But I just kept pulling on that thread, and the result, I suppose, is The Crooked Path to Abolition.  

What do you argue in The Crooked Path to Abolition?

JO: I argue that the founders did indeed make important proslavery compromises in the Constitution, as a number of distinguished scholars have argued—not only Paul, but also Staughton Lynd, George Van Cleve, and my friend David Waldstreicher.   But the founders also made compromised with the opponents of slavery.  The proslavery delegates at the constitutional convention were forced to accept a three-fifths clause rather than the five-fifths they wanted, for example.  The deep South delegates also swallowed a slave trade clause they didn’t want, allowing the federal government to take control of the trade away from the states.  The Constitution empowered Congress to ban slavery from the territories.  And perhaps most significantly—as Sean Wilentz has demonstrated--proslavery delegates tried and failed to secure a constitutional right of “property in man.”  Everyone agreed that the federal government could not abolish slavery in a state.  That’s the “Federal Consensus,” as Bill Wiecek named it decades ago.  But there was sharp disagreement, right from the start, over how much power the federal government had over other aspects of slavery—the slave trade, slavery in the territories and in Washington, D.C., over fugitive slave renditions, and even the domestic slave trade.
For me, then, the critical question is not
which interpretation of the Constitution was correct?  Rather, the issue was always the balance of political power between those who supported a proslavery reading and those who affirmed the antislavery reading of the Constitution.  Both proslavery and antislavery constitutionalism developed in relation to each other through a series of political disputes beginning in the 1790s and continuing to the Civil War.  
In the book I trace the role of antislavery activists, black and white, in developing an increasingly robust antislavery constitutionalism.  They colonized more and more of the Constitution—the Preamble, the exclusive jurisdiction clause, the privileges and immunities clause, the Fourth, Tenth, and especially the Fifth amendment.  They also insisted that the guiding “spirit” of the Constitution was the principle of fundamental human equality articulated in the Declaration of Independence.  Over the course of the 1840s and early 1850s a powerful antislavery constitutional synthesis emerged, even as antislavery moved from the radical margins back into the mainstream of American politics.  
Antislavery activists and politicians did not deny the proslavery compromises in the Constitution.  But they argued that those compromises were exceptions to the general rule of freedom in the Constitution.  This is not an entirely fanciful reading.  The Preamble does state that the purpose of the government was to secure the blessings of
liberty, and the Fifth amendment says that no “person” (and slaves are only referred to as persons) could be deprived of liberty without due process of law.  And so in the parlance of slavery’s opponents, the Constitution made “Freedom the Rule, Slavery the Exception.” 
I argue that the antislavery Republican Party that emerged in the 1850s was based on a radicalized antislavery constitutionalism.  Although the policy of banning slavery from the territories became the common ground for Republicans of all stripes, the underlying constitutional principles justifying that policy, as reflected in the party platforms of 1856 and 1860, were quite radical.  For example, Republicans did not merely say that Congress had the power to ban slavery from the territories, they said that Congress could not constitutionally allow slavery in the territories.  Congress could no more create a slave than a king.  This was so radical that the Republican victory in the 1860 presidential election prompted the secession of seven slave states.  

You write about something you call “The Antislavery Project.”  Can you describe it?

JO: The Antislavery Constitution had two distinct policy implications, one for peacetime and the other in case of secession and war.  
What I call the Antislavery Project, first formulated by the pioneering abolitionist Benjamin Lundy, was a set of policies to be implemented in peacetime.  Taken together, the policies were designed to pressure the slave states to abolish slavery on their own.  Congress could, “under the Constitution,” ban slavery from the territories, establish rigorous legal standards for fugitive slave renditions, abolish slavery in Washington, DC, suppress slavery on the high seas, and perhaps regulate the domestic slave trade, especially the coastwise slave trade.  By surrounding the slave states with free states, free territories, and free oceans—what was known as a “cordon of freedom”—the federal government would indirectly compel the slave states to abolish slavery on their own.  This is crucial:  The federal government could not abolish slavery in a state, so the goal of abolitionism, and of antislavery politics, was to get the slave states to abolish slavery on their own.  
The second policy implication stemmed from what I call the Forfeiture of Rights doctrine.  First, if the slave states seceded from the Union the slaveholders would forfeit the few rights they had under the Constitution, primarily the right to recapture their fugitive slaves in the free states or wherever the federal government was sovereign (such as Union army camps).  Second, if the slave states rebelled against the Union the war powers clause of the Constitution empowered the federal government to emancipate “forfeit” slaves in an effort to suppress the rebellion.  You see the language of “forfeiture” everywhere in Republican antislavery policy in the first year of the war.

Which brings us to Abraham Lincoln.  How does he fit into this story?

JO: When Lincoln came out of semi-retirement in 1854 he began, for the first time, to define himself as an antislavery politician and, as such, he adopted the principles of antislavery constitutionalism that activists had been developing for decades.  He was already on record advocating abolition of slavery in Washington, D.C. and a ban on slavery in the territories.  In the 1850s he called for aggressive suppression of slavery on the high seas.  And he began to suggest that accused fugitives were entitled to the rights of due process to which all citizens were entitled.  By 1859 he was warning southerners that if they seceded, they would forfeit their right to the return of their fugitive slaves.  So the Antislavery Project is there in Lincoln’s speeches, and it was based on the Antislavery Constitution.
Lincoln repeatedly denied that the there was such a thing as a constitutional right of “property in man.”  He insisted that the Constitution was suffused with the “spirit” of fundamental human equality.  He believed that Congress was constitutionally empowered to abolish slavery in Washington, D.C. and, more radically, that Congress had a “duty” to keep slavery out of the territories.  He asserted in his first inaugural address that accused fugitives were entitled to the “privileges and immunities” of citizens.  
Lincoln’s wartime policies reflected his antislavery constitutionalism.  He signed the laws abolishing slavery in Washington, D.C., banning slavery from the western territories, and requiring West Virginia to abolish slavery as a condition of admission to the Union.  He negotiated a treaty with Britain for the suppression of the slave trade.  That was the Antislavery Project.  I spelled all of this out in
Freedom National.  
In my new book I show how Lincoln and the Republicans quickly adopted the “forfeiture of rights” doctrine, refusing to return slaves escaping from disloyal owners or disloyal states.  By December he and his cabinet issued a series of annual reports justifying the administration’s emancipation policy.  That same month the Republican Congress was hauling Union officers before the Committee on the Conduct of the War for having returned fugitive slaves to their owners and Lincoln’s secretary of war saw to it that one such officer was sent to prison.  I add new research demonstrating that, despite his famous order to Frémont—which merely required the general to rewrite his emancipation edict to conform to the First Confiscation Act--Lincoln heartily approved of the emancipation of thousands of Missouri slaves by the antislavery Union general James Lane.  
In my final chapter I show that Lincoln used the Emancipation Proclamation as a lever to pressure the slave states to do what antislavery politicians had always wanted them to do—abolish slavery on their own.  This was the critical precondition for the successful adoption of the Thirteenth amendment.  By late January of 1865, when Congress sent the amendment to the states for ratification, Lincoln had successfully pressured six slave states to abolish slavery.  This made the ratio of free to slave states 27:  9, or three-quarters—the number needed for ratification.  And, indeed, all six of those states quickly ratified the amendment.  
Hence my book turns on a paradox:  Antislavery constitutionalism led, in the end, to a major revision of the Constitution.  Put differently, without antislavery constitutionalism, the Constitution could not have been rewritten.