Lincoln’s outlook was rooted in a distinct antislavery constitutionalism, elaborated by reformers and politicians in counterpoint to the proslavery constitutionalism of Southern enslavers. During the antebellum decades, as slavery’s apologists ratcheted up their claims that slaveholding was a constitutionally protected property right, abolitionists drew out the antislavery implications of the founding documents. For example, while Southern enslavers emphasized their summary right of recaption of fugitives, abolitionists emphasized states’ authority to require due process in renditions. The Constitution’s ambiguity on the fugitive issue meant “that every slave who escaped from Maryland to Pennsylvania, or from Kentucky to Ohio, opened the possibility of a political conflict between the owner’s claim to his or her ‘property’ and the free state’s recognition of the accused fugitive’s right to due process.”
Invoking the Fifth Amendment right to due process was just one of the many ways that slavery’s opponents “colonized” the Constitution, imbuing certain clauses with antislavery meaning. They also emphasized such measures as the territorial clause, which granted Congress the power to ban slavery from the territories, thereby preventing the addition of new slave states. By the time he became president in 1861, Lincoln had embraced most elements of what Oakes calls the “Antislavery Project”: a set of policies, such as congressional abolition of slavery in the District of Columbia and the suppression of illegal smuggling of enslaved people into the United States, designed to reverse slavery’s expansion and shift the sectional balance of power northward.
Lincoln homed in on the banning of slavery’s expansion in the territories as the one issue around which his nascent Republican Party was “most likely to build a winning coalition.” In his reckoning, the policy of nonextension, by surrounding slave states with a cordon of free states, would undermine slavery’s economic profitability and motivate Southern Whites to dismantle the institution.
The Civil War, Oakes shows, radicalized Lincoln, compelling him to press more aggressively an agenda of state-level emancipation, through both threats and incentives aimed at enslavers. Lincoln seized on the antislavery movement’s long-standing forfeiture-of-rights doctrine, which held that seceded states would relinquish their right to have fugitives returned, and on the doctrine that emancipating the enemy’s enslaved people was a legitimate use of war powers. These prewar doctrines formed the basis of the wartime policy by which the Union Army confiscated, freed and eventually enlisted fugitive slaves.
Lincoln also tried in vain to entice the loyal border slave states to adopt gradual emancipation policies, by offering to compensate them for their financial losses and to deport those who were freed. Though his overtures were rebuffed, he remained committed, even after his Emancipation Proclamation of 1863, to promoting state-by-state abolition. Lincoln’s sustained campaign to shift the balance of power in these states toward antislavery forces worked, as six state governments — Maryland and Missouri, which had never seceded, and Virginia, Arkansas, Louisiana and Tennessee, which were undergoing wartime reconstruction — abolished slavery in the last year of the war. Adding them to the roster of free states made possible the 1865 ratification of the 13th Amendment, which abolished slavery throughout the United States. This course of events was “hardly inevitable,” Oakes notes, but “neither was it accidental”: Antislavery constitutionalism guided Lincoln’s journey down the winding path to emancipation.
A commitment to the federal consensus not only drove but also constrained Lincoln. The limits of his egalitarianism — his failure to support full social and political equality for Blacks — were, Oakes surmises, a function of his federalism. Lincoln regarded the right to vote or hold office or marry or attend public schools or serve on juries as state matters, beyond the purview of the federal government; under a federal system, state legislatures retained the power to practice local racial discrimination. In deferring to this notion of states’ rights, Lincoln also deferred to discriminatory views and practices.
This book represents a shift in Oakes’s own thinking. While his 2007 study of Frederick Douglass and Lincoln, “The Radical and the Republican,” juxtaposed Douglass the crusading reformer with Lincoln the cautious politician, this volume foregrounds the commonalities between the two men. Lincoln shared with Douglass, Oakes emphasizes, an abiding belief in the abolition movement’s core principle of fundamental human equality.
Much insight is to be gained by contrasting the antislavery constitutionalism of Douglass and Lincoln with the proslavery constitutionalism of Southern enslavers: Doing so brings into sharp focus the anti-racist qualities of Lincoln’s leadership. But Oakes’s earlier approach remains salient. Douglass and Lincoln both hated slavery, but “they hated it in different ways,” as Oakes has cogently put it. Lincoln’s view of Black freedom was considerably narrower than that of Douglass and of the Black resisters and reformers who were the vanguard of the abolition crusade. Understanding the convergence of Lincoln and Douglass is essential for understanding slavery’s wartime demise. Acknowledging the persistent fault lines in the North, even among slavery’s opponents, is a key to understanding why fundamental rights remained so elusive for Black Americans.
The Crooked Path to Abolition
Abraham Lincoln and
the Antislavery Constitution
By James Oakes
256 pp. $26.95