Author Interview--James Oakes (The Crooked Path to Abolition) Part 2

Hello H-CivWar Readers:

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

Part 1

You have a chapter on Lincoln and race. How do you describe his views on the question of race and slavery?

JO: It’s become a standard theme in Lincoln scholarship that during the war his views on racial equality evolved in an increasingly progressive direction.  As a young politician Lincoln endorsed racially restrictive voting and engaged in all manner of racial demagoguery.  Even in the 1850s Lincoln disavowed support for the social and political equality of Blacks and whites.  During the war, however, Lincoln drifted toward more racially egalitarian policies and ended up advocating voting rights for some black men, the first president to do so. 
In Crooked Path I suggest that Lincoln’s views on race began to change before the war, as he became increasingly committed to antislavery constitutionalism.  As I mentioned earlier, antislavery constitutionalists held that the Declaration of Independence represented the “spirit” of the Constitution, so it’s not surprising that beginning in 1854 Lincoln insisted that Blacks and whites were equally entitled to life, liberty and the pursuit of happiness.  This position became standard among Republicans but was vigorously contested by northern and southern Democrats.  As northern Democrats came to rely on an increasingly strident, demagogic racism, Lincoln began to push back and by the late 1850s he was strenuously denouncing the racism of his arch-nemesis Stephen Douglas.  
On the other hand, because he lived in a state with some of the harshest anti-Black laws in the country and was confronted year after year with Douglas’s power and popularity, Lincoln adopted a deeply pessimistic view of the prospects for African Americans in the United States.  This helps explain Lincoln’s support for colonization, albeit in ways some historians seem to find overly nuanced.  So be it.  Lincoln was not a proto-segregationist, and as the years passed his support for colonization appears to have been driven less by racism than by anti-racism. 
It is incorrect to claim that “whenever” whites contemplated race their minds turned to colonization.  Most of the time when slaveholders thought about race they thought about perpetual racial slavery, not colonization.  Northern Democrats often objected to colonization because it presupposed emancipation, which they opposed.  More importantly, the first generation of abolitionists in the late eighteenth and early nineteenth centuries, far from supporting colonization, strove for the gradual incorporation of freed people as full citizens.  Indeed, a more plausible criticism of those early abolitionists is that their commitment to the incorporation of Blacks was too gradual.  But whether we call them radicals or conservatives, those earliest abolitionists were “optimistic” about the future of Blacks in America.  Hence they were horrified by the emergence of the American Colonization Society.  As Paul Polgar has recently demonstrated, racial pessimism was an ideological hallmark of the ACS from its founding in 1817.  
Lincoln began publicly endorsing colonization in 1852 and continued to do so for a decade, until late 1862.  Even after the Emancipation Proclamation, as I argued in Freedom National, Lincoln probably still believed that Blacks could only achieve full equality in a colony somewhere outside the United States.  But Lincoln’s position was not the Republican Party position.  Some Republicans like Montgomery Blair and Edward Bates were avid supporters of colonization, but others--Salmon Chase and William Seward and Charles Sumner--opposed colonization.  Indeed, so controversial was colonization within the Republican Party that no national platform, and almost no state platforms, ever endorsed it.  
Lincoln’s views on colonization fell within the complex matrix of views within his own party, but they are also specific to him.  For one thing, he opposed involuntary deportation—which some of the more extreme colonizationists supported.  This meant that if Lincoln’s preferred policy was to work, it would require the voluntary participation of Blacks.  Otherwise his notorious meeting with Black leaders in the Summer of 1862 makes no sense:  He was trying to persuade them to take the lead in a voluntary colonization movement, a movement Black Americans overwhelmingly rejected. Nowhere else was Lincoln’s racial pessimism so clearly expressed than in his heavy-handed address to that Black delegation.  Go wherever you want in this country, Lincoln said, and you will not be treated as equals.  Even in the states where Blacks were treated best, they were still discriminated against.  As Lincoln saw it, there was virtually no chance that Blacks would ever be treated equally in this country.  Was this racist, or was it anti-racist?
The evolution of Lincoln’s anti-racism commenced with his defense of the privileges and immunities of Blacks as citizens of the United States, a mainstream Republican idea that Lincoln inched toward in the late 1850s.  In his inaugural address he explicitly called for a revision of the Fugitive Slave Law that would not deprive anyone, he said, of the privileges and immunities to which all citizens were entitled.  In late 1862 Lincoln’s attorney general issued an opinion declaring that Blacks were citizens of the United States.  By then “citizenship” among Republicans referred to a widely accepted set of rights that they subsequently incorporated into the Civil Rights Act of 1866 and the Fourteenth Amendment.  But Lincoln worried that Black Americans could never fully enjoy those rights within the United States because too many whites were too racist.  Lincoln made this abundantly clear in his last public defense of colonization, in December of 1862, which included a blistering attack on the racist justification for the policy.  As I put it in my book, Lincoln’s support for colonization was driven less by racism than by racial pessimism.
Lincoln always thought of colonization as, fundamentally, an antislavery policy.  When he dropped his public support for colonization it was not because he stopped believing in it but because it no longer suited his antislavery purposes.  In the first two years of the war he offered federal subsidies for colonization to the slave states if they abolished slavery on their own.  But in 1863 he adopted the more coercive approach of military emancipation to pressure the slave states.  It was clear by then that colonization as a federal policy was not going anywhere.  (Congress had authorized a grand total of fifteen cents for the prospective colonization of each emancipated slave, and the Lincoln administration ended up spending only a fraction of that fund.) The slave states opposed colonization.  African Americans opposed it.  And too many Republicans—quite possibly a majority of Republicans—opposed it.  Colonization helps us understand aspects of Lincoln’s thinking about race, but as a federal policy it was a non-starter.
Within the Republican Party emancipation was far more popular than colonization.  As a result, during the Civil War the federal government secured the emancipation of four-million enslaved people and did not colonize any of them.  If anything, it moved in the opposite direction. At one point Congress passed and Lincoln signed a law authorizing the navy to first, track down owners who had carried their slaves off the Cuba or Brazil in an effort to avoid emancipation and second, to return the enslaved people to the US and emancipate them.  Moreover, within a few short months of the ratification of the 13th Amendment the Republican Congress passed a landmark Civil Rights Act declaring Blacks citizens of the United States and guaranteeing them the equal protection of the laws.
I’m generally leery about drawing “lessons” from history, but it does strike me as important to point out that alongside the terrible history of American racism there is a history of anti-racism.  Is it far-fetched to think of the fifty-thousand Bostonians who lined the streets to protest the rendition of Anthony Burns and the predecessors of the hundreds of thousands of white Americans who marched in the streets to protest the murder of George Floyd?  A few weeks after the white supremacists and neo-Nazis marched in Charlottesville they tried again but were thwarted, again in Boston, by a crowd of fifteen-thousand anti-racist protesters.  A few weeks ago white supremacists called a rally in Huntington Beach but the handful who showed up were confronted by hundreds of anti-racist protesters.  Why deprive these anti-racists of their forebears?  Why give all of US history over to the white supremacists?  Why turn a history of conflict over racial equality into a history of white racial consensus?

One topic that sounded almost like a rehearsal of arguments for Reconstruction was the claim that secession would represent a forfeiture of rights—how much do you see continuity between the antebellum arguments over slavery and secession and the argument advance during Reconstruction how to deal with the rebellious states?

JO: There is substantial continuity between antebellum debates over slavery and postbellum debates over Reconstruction.  Of course congressional Republicans responded to the immediate conditions in the postwar South, but they responded in ways conditioned by prewar debates over slavery, citizenship, and the Constitution.  An older school of scholars, notably Jacobus Ten Broek, made this argument decades ago, but it has recently been revived.  Eric Foner’s book on the Reconstruction amendments starts with those prewar debates.  And a couple of very important books just out, or soon out, make a powerful case for the prewar origins of the Fourteenth amendment.  One is by Kate Masur, the other by Randy Barnett and Evan Bernick.  Van Gosse has just published an important book showing that struggles over Black voting rights long preceded the Civil War.  So, yes, the terms of debate over Reconstruction were not invented de novo when the war ended.

I was also fascinated by your presentation of the evolving view on the enforcement of the fugitive slave laws. There was no support obviously for disloyal masters but even loyal masters did not get any help? Can we view this as even before the 13th Amendment, the writing is on the wall?

JO: Neither the fugitive slave clause nor the Fugitive Slave Act designated the US military as the enforcement agent.  In the 1850s a succession of pro-southern presidents ordered Union troops to assist slave catchers, but Republicans objected.  Almost as soon as the war began Republicans in the House overwhelmingly supported a resolution declaring that the Union army and navy had no business participating in fugitive slave renditions, and in March of 1862 Congress revised the articles of war to make it a crime for anyone in the military to assist in the capture of fugitive slaves.  
Think about what this meant as Union troops marched through Maryland, Kentucky, and Missouri—three loyal slave states.  Union troops were a magnet for enslaved people running for freedom, and the troops were not supposed to return them—no matter how loyal their owners were.  Of course there were conspicuous cases of Union soldiers returning slaves to loyal as well as disloyal owners.  But we know about those cases mostly because somebody complained.  Sometimes ordinary soldiers complained about being turned into slave catchers, but Massachusetts Governor Andrew also complained, as did Republicans on the Senate floor. Despite those cases, from the first year of the war loyal owners, even in loyal slave states, often found it difficult to recapture their escaped slaves and it became steadily more difficult as the months passed.  
In the first year and a half of the war federal fugitive antislavery policy became increasingly radical, culminating in the Emancipation Proclamation.  But none of that led inevitably to the 13th Amendment.  Nobody was even thinking about an abolition amendment when the war began.  Refusing to return fugitives and emancipating them as “contrabands”—which began in August of 1861--was a policy designed to suppress the rebellion, not abolish slavery.  To be sure, the policy was driven by the antislavery convictions of the Republicans, but it was not an abolition policy.  
Nor did emancipation make the 13th Amendment inevitable.  What if Lincoln and the Republicans failed to win the 1864 elections?  And even after Lincoln did win -re-election it was a struggle to get the amendment out of the House in January of 1865.  Had McClellan been elected president in 1864—which was quite possible--the history of the United States could easily have been very different.  No amendment.  Nothing like “Reconstruction” as we know it.  
So I would not say that federal refusal to return slaves to loyal owners in the first year of the war meant that the “writing was on the wall” for nationwide abolition.  It was a step in a process that led eventually to abolition, but there was nothing teleological or inevitable about it.

As a follow-up, how do we have to view the Emancipation Proclamation? Was it a tool to bring the seceded state back or was it another signpost on the way to slavery’s end?

JO: The Proclamation meant several different things.  In one sense it was the culmination of a  radicalizing process that began in the earliest weeks of the war, when Lincoln approved of Benjamin Butler’s refusal to return what he called “contraband” slaves in late May of 1861. With the exigencies of war the policy of emancipating slaves as a “military necessity” became steadily more aggressive.  The Proclamation took military emancipation about as far as it could go.  
Before January 1, 1863 Union soldiers were prohibited from enticing slaves from their owners.  The Proclamation lifted the ban on enticement, and the Union army began systematically encouraging slaves to emancipate themselves by escaping to Union lines.  Moreover, the proclamation applied to every slave in every disloyal part of the South (Tennessee excepted).  In theory the Proclamation freed millions of slaves, but in practice only about fifteen percent of the enslaved population had actually been emancipated when the war ended.  You might say the Proclamation’s reach exceeded its grasp.  
But there’s another aspect to the Proclamation that I emphasize in Crooked Path.  By early 1862 Lincoln was warning the loyal slave states that military emancipation might lead willy-nilly to the complete destruction of slavery in their states.  As he put it, slavery might disappear in the border slave states “by mere friction and abrasion,” the incidental but easily foreseeable byproduct of a policy whose purpose was to suppress the rebellion.  He was urging the border slave states to take control of the process by abolishing slavery on their own.  All of this is well known.  
It is less well-known that a year later, with the Proclamation having been issued—and with the United States Colored Troops having been organized—Lincoln began to use military emancipation more deliberately as a lever to get the slave states to abolish slavery on their own—which was the goal of antislavery politics all along.  By mid-1863, state abolition was conceived as one of the intended products of the policy of emancipating slaves and recruiting them into the Union Army.  Two previously distinct policies—military emancipation and state abolition—had converged.
Was the proclamation a “signpost on the way to slavery’s end?”  I would say yes.  Abolition was still not inevitable, but certainly by mid-1863 military emancipation was becoming systematically linked to abolition, though it was still conceived as state by state abolition.  
Finally, in addition to the shift in policy, the Emancipation Proclamation prompted a less tangible but quite significant ideological shift:  It accustomed more and more northerners to the idea that the war could only be won by the complete destruction of slavery.  And after having absorbed that idea for a year, by December of 1863 a majority of northerners was prepared to accept the new and still more radical proposal for a 13th Amendment abolishing slavery nationwide.

I briefly want to drift into teaching, because I think what you have here is a good book for even a survey undergraduate course. Even more, however, for teachers who teach the U.S. Constitution, how would you suggest they could illustrate with maybe documents from the next sixty years the different interpretations of pro- and anti-slavery constitution? In part, I guess, what document(s) did you find the most useful for your argument?

JO: Congressional debates are useful, because you can see constitutional arguments play out in real time, over a series of specific issues.  The 1790 debate over the reception of anti-slave trade petitions is the place to start.  The two Missouri Crisis debates of 1820 and 1821 are extremely important for the development of antislavery constitutionalism.  The “gag rule” debates matter because they’re largely driven by the question of whether Congress could constitutionally abolish slavery in Washington, D.C.  Calhoun’s “Enterprise Resolutions” and Joshua Giddings’s “Creole Resolves” play off nicely against one another.  The Wilmot Proviso debates, of course.  The 1850 debate over the Fugitive Slave Act is particularly useful for raising constitutional issues.  And by then the argument is pretty much set, so you see it in its final synthesis.
Also very useful are the transcripts of the Black conventions, which are now available online.  They frequently transcribe debates about the Constitution and slavery, and Black activists were—as far as I can tell—the first to insist on jury trials for accused fugitives.
There are also important abolitionist tracts, particularly Theodore Dwight Weld’s pamphlet on Congress’s power over slavery in Washington, D.C. and, a few years later, William Jay’s long tract on slavery and federal power.  You can see how abolitionist ideas were translated into politics in published speeches, notably Senator Charles Sumner’s call for the repeal of the Fugitive Slave Act, published as a pamphlet entitled “Freedom National, Slavery Sectional.”
Salmon P. Chase played a central role in the development of antislavery constitutionalism.  His briefs in the Matilda case were published as pamphlets and they’re a good place to get a sense of the argument.  His speech at the 1844 Liberty Party (I hope I’m remembering that right) convention is also a superb statement of antislavery constitutionalism.  
Another nice counterpoint might be Wendell Phillip’s essay arguing that the Constitution was a proslavery document over against Frederick Douglass 1860 speech in Glasgow, arguing the opposite position, that the Constitution was an abolitionist document.
Finally, everybody should be familiar with Lincoln’s Cooper Institute Address, which is a sustained defense of the Antislavery Constitution, explicitly disputing the argument for a proslavery Constitution.

What are your future plans?  Obviously, you sort of fell into this project and one never knows precisely what the future hold, but do you have a new project?

JO: I’m supposed to be writing a fairly large general history of the Civil War.  The theme I’m playing with is the conflict between slaveholders and non-slaveholders, understood in broad national terms.
My inclination at this point is to stress the successful creation of a Union coalition of non-slaveholders.  That would include Republicans, War Democrats, but also northern women and southern slaves.   This against the slaveholders who could not build and maintain a successful Confederate coalition.  Four slave states failed to join the Confederacy, a devastating failure right from the outset.  Support for secession and war was erratic among non-slaveholding whites and collapsed in the last year of the war.  And, of course, enslaved southerners were of more assistance to the Union coalition than the Confederate.  So in the end, I’m inclined to argue, the North won the war because it built a larger, stronger coalition of non-slaveholders that could put down the slaveholders’ rebellion.  We’ll see if I can pull this off.