The Crooked Path to Abolition : Lincoln and the Antislavery Constitution

Following expert taken from the book The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution written by the author published by W. W. Norton & Company

by James Oakes

IN EARLY 1861, on his long, meandering journey from Springfield, Illinois, to Washington, DC, president-elect Abraham Lincoln stopped in Philadelphia on February 21 and gave a couple of brief but revealing speeches. By then six slave states had seceded from the Union—a Union Lincoln was determined to hold together. At Independence Hall, inspired by the place where his country had been founded, Lincoln could “listen to those breathings rising within the consecrated walls where the Constitution of the United States, and, I will add, the Declaration of American Independence was originally framed.” Lincoln believed that, taken together, these two documents—the Declaration and the Constitution—stated plainly the bedrock principles of the American nation. In one of those biblical allusions at which he was so adept, Lincoln swore an oath: “May my right hand forget its cunning and my tongue cleave to the roof of my mouth, if ever I prove false to those teachings.”

It was not “mere separation” from Great Britain that had inspired the revolutionary generation, Lincoln told his listeners that day in Philadelphia. They were aiming for something higher, “something in that Declaration giving liberty, not alone to the people of this country, but hope to the world for all future time. It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance.” This, Lincoln declared, “is the sentiment embodied in the Declaration of Independence.” Now, as he faced the dismemberment of the Union, he wondered, “can this country be saved upon that basis?” If so, “I will consider myself one of the happiest men in the world.” But what if the Union could only be preserved if Americans reneged on the promise of equality bequeathed by the founders? Standing in Independence Hall the soon-to-be president of the United States made one of the most startling statements of his career. “If this country cannot be saved without giving up that principle,” Lincoln declared, “I would rather be assassinated on this spot.”

As unflinching as it was, Lincoln’s firm commitment to fundamental human equality did not make him an abolitionist. He never called for the immediate emancipation of the slaves, the way most abolitionists did. He never denounced slaveholders as sinners and never endorsed the civil or political equality of Blacks and whites. He never claimed, as some abolitionists did, that the Constitution empowered Congress to abolish slavery in the states, nor did he agree with other abolitionists that the Constitution was a proslavery document. He never opened his home to fugitive slaves on the underground railroad. He endorsed the voluntary colonization of free Blacks long after most abolitionists had repudiated colonization outright. He never joined an abolitionist society, but he did join the Springfield branch of the American Colonization Society. He certainly spoke at colonization meetings and temperance meetings, but never at an abolitionist meeting. Lincoln supported due process rights for fugitive slaves, but he never endorsed outright defiance of the Fugitive Slave Act of 1850 and never denounced it as unconstitutional. Where abolitionists often publicized slavery’s most gruesome features—the whippings, the sexual abuse, the brutal destruction of slave families—Lincoln rarely referred to such things. He was repelled by what he saw as the stridency of so much abolitionist rhetoric. As Eric Foner has said, Abraham Lincoln was not an abolitionist and never claimed to be.

But Lincoln always hated slavery as much, he once said, as any abolitionist. Like the abolitionists, Lincoln openly attacked slavery as a social, political, and moral evil. If there were differences between antislavery radicals and antislavery politicians like Lincoln, there were also substantial overlaps between them. Most abolitionists understood that in the end the problem of slavery required a political solution, and so they quite often framed their arguments in careful legal and constitutional terms—terms they generally shared with antislavery politicians. Like Lincoln and the Republicans, abolitionists considered themselves the heirs of the founders, the generation that had set in motion the abolition of slavery in the various states. Abolitionists worked hard, and with remarkable success, to formulate what I call the Antislavery Project, an agenda, a series of specific policies that were designed to stop and then reverse the expansion of slavery, policies that would—as Lincoln later explained—put slavery on “a course of ultimate extinction.” By the 1850s abolitionists had succeeded in restoring the problem of slavery to the heart of American politics. They were now part of a vast and increasingly powerful antislavery movement, a coalition that embraced the majority of northern voters. That coalition, known as the Republican Party, constituted the left wing of the American political spectrum, and its most successful spokesman turned out to be Abraham Lincoln.

He was certainly much closer to the left than to the right. Conservatives disputed Lincoln’s reading of the Declaration of Independence and often denied that it was linked to the Constitution. By the 1850s defenders of slavery not only distinguished the two documents but sometimes went so far as to dismiss entirely the principle of fundamental human equality. Northern Democrats who were indifferent to slavery, led by Illinois senator Stephen Douglas, read “all men are created equal” as “all white men are created equal.” But for abolitionists, Republicans, and Lincoln, the Declaration meant everybody—men and women, Black and white. It meant that, at the very least, everybody was entitled to be free. It also meant that the promise of universal freedom was embodied in the Constitution.

Early in the twentieth century historians began to argue that there was a vast gulf between the soaring ideal of human equality so eloquently proclaimed in the Declaration of Independence and what they believed was the more conservative, elitist Constitution. Even today historians disagree about whether the principle of fundamental human equality represented a revolutionary new ideal or a hypocritical fantasy in a society that tolerated slavery. Are the inspiring sentiments of the Declaration’s opening passages belied by a Constitution that recognized and protected human bondage? For the majority of northerners living in the middle of the nineteenth century, most of whom disliked slavery, the answer was no. Parse every clause of the Constitution, peer into the minds of its authors, and you may never find the antislavery document revered by so many ordinary men and women, Black and white, all across the North. But like the slaves who preferred the Book of Exodus to the epistles of St. Paul, or the radicalized British workers who had their own notions about the rights of Englishmen, northern farmers and artisans gave their allegiance to a Constitution that was unrecognizable to the Slave Power. Theirs was a popular constitutionalism—though not lacking for hefty scholarship—and millions of its adherents elected one of their own as president in 1860.

Lincoln once likened the Declaration to a picture, the Constitution to its frame. For him, as for most antislavery politicians, the men who drafted America’s founding charter in the long summer of 1787 had committed the new nation to the principle of fundamental human equality. Fifty years later the great abolitionist William Lloyd Garrison would burn the Constitution in public, vehemently denouncing it as a covenant with Satan, a proslavery atrocity. But the majority of abolitionists didn’t believe that, no antislavery politician believed that, and neither Abraham Lincoln nor the people who voted for him believed it. For him—for them—the Constitution was an antislavery document.

Why, Lincoln once asked, did “those old men, about the time of the adoption of the Constitution,” decree that slavery should not go into new territories where it did not yet exist? Why did they declare “that within twenty years the African Slave Trade, by which slaves are supplied, might be cut off by Congress?” What were these and other acts “but a clear indication that the framers of the Constitution intended and expected the ultimate extinction of the institution”?3 For Lincoln the antislavery Constitution made itself felt by its practical consequences, by the various “acts” of the founders and the justification for similar “acts” undertaken by their descendants. Even in our own day politicians commonly claim that the policies they advocate are grounded in the Constitution.

But Lincoln lived in an age of “constitutionalism,” as the scholars call it, when every major issue was debated in constitutional terms. Was the treaty for the purchase of Louisiana constitutionally sound? Was the Bank of the United States constitutional? Could the federal government constitutionally support “internal improvements,” what we would call infrastructure projects? No other issue provoked as much protracted constitutional wrangling as slavery. What power did the Constitution give Congress to regulate slavery in the territories? Did Congress have the constitutional authority to abolish slavery in the District of Columbia? Did the fugitive slave clause of the Constitution grant slaveholders a broad right of property or a narrower “right of recaption”? Did the Constitution grant “extraterritorial” protection to masters wherever they went with their slaves? Or did slaves who stepped outside the limits of a slave state instantly acquire the “privileges and immunities” guaranteed by the Constitution? And what, exactly, were those privileges and immunities?

When the Constitution was ratified, nearly everyone agreed that Congress had no power to “interfere” with—that is, abolish—slavery in a state. This had been true under the Articles of Confederation and it continued to be true under the Constitution. Historians call this the federal consensus. But the same principle protected abolition in the states: Congress had no power to interfere with emancipation in states that had established the presumption of freedom. This, too, raised a number of contentious constitutional questions. Could a state where freedom was presumed guarantee the rights of due process to men and women accused of being fugitive slaves? Did masters forfeit their slave property when they voluntarily carried their slaves into northern states that presumed freedom? And how far did that presumption of freedom extend? Did slavery follow the Constitution when southern masters migrated westward, or was freedom the “normal condition” of the territories? Did slaves acquire constitutional rights in US territorial waters?

Over time it became increasingly common for slaveholders to threaten secession if the northern states continued to deny southern masters the rights they believed were constitutionally protected. But threats of disunion only succeeded in raising another series of explosive constitutional questions. If a state seceded from the Union would its masters forfeit their constitutional right to recapture their fugitive slaves? If states where slaves were defined as moveable property went to war with the Union could federal armies constitutionally confiscate that property as “contraband of war”? Could President Lincoln, acting on his constitutional war powers, emancipate confiscated slaves? Indeed, was the Emancipation Proclamation unconstitutional?

Abolitionists developed compelling answers to all these questions. They narrowed down and sequestered the fugitive slave clause, deeming it a singular, limited exception to the general constitutional rule of freedom. They colonized various clauses of the Constitution—the Preamble, the privileges and immunities clause, the Fourth, Fifth, and Tenth amendments—for antislavery purposes. And from this antislavery Constitution they developed the Antislavery Project. Even abolitionists agreed that the federal government could not abolish slavery in a state, but it could suppress the slave trade, protect the rights of fugitive slaves, abolish slavery in Washington, DC, ban slavery from the western territories, and deny admission of new slave states into the Union. Such policies were made possible by the antislavery Constitution—the one Lincoln believed was created by the founders.

But something had gone wrong. Somewhere along the way a “Slave Power” had wrested control of the federal government and thrown the nation off its ordained course. The intellectual depth and popularity of antislavery constitutionalism were no match for the disproportionate power exercised by slaveholders in Congress, the presidency, and the Supreme Court. The goal of antislavery politics was to defeat this Slave Power and put the federal government back on the right track, to adopt policies that would, as the abolitionist William Jay put it in 1839, “ultimately exterminate” slavery. By the 1850s antislavery politicians were using the same language. Thaddeus Stevens called for the “final extinction” of slavery, and William Seward its “ultimate extinguishment.” Lincoln would put slavery “on a course of ultimate extinction.” That, they all argued, was what the founders intended.

At some point in the decades-long debate over slavery, every side claimed to be faithful to the intentions of the singular group of men they called the “founders.” Who were these people? If in the 1780s the state legislators in Pennsylvania, New York, Connecticut, and Rhode Island qualified as founders, we can say that a majority of them clearly intended to put slavery on a course of ultimate extinction. But the same could hardly be said for their counterparts in the legislatures of Georgia and the Carolinas. The ambiguity remains if the founders include only the delegates at the 1787 Constitutional Convention. No doubt some of those men intended to perpetuate slavery and some intended, or at the very least expected, slavery to die. When it comes to the problem of slavery, as with many other issues great and small, it is simply not possible to discern a unified group of founders whose intentions can be readily discerned.

That didn’t stop people—years after the Constitutional Convention adjourned, in the heat of national debates over slavery—from ascribing implausible intentions to the founders. When the proslavery senator John C. Calhoun claimed that they intended to maintain an equilibrium between slave and free states, he was making it up. So was Supreme Court Justice Roger B. Taney when he asserted, as a truth too plain to be disputed, that the founders expressly recognized a constitutional right of property in slaves. They did no such thing. But Lincoln was also stretching it when he said that the founders intended to put slavery on a course of ultimate extinction. Some did and some didn’t.

It may be that the intentions of those who produced the Constitution are irrelevant. It may be that what matters is the original meaning of the text itself. Distinguished legal scholars whose job it is to interpret the text have given us ingenious, even brilliant, but alas very different readings of what the Constitution actually says about slavery. It’s not that the text is irrelevant. It matters that there was a fugitive slave clause and a three-fifths clause in the Constitution. Scholars disagree about how much those clauses mattered, but no one denies that they did. Indeed, together those two clauses might well be considered the bricks and mortar of the proslavery Constitution. The one guaranteed southern slaveholders the constitutional right to recapture slaves who escaped to states where slavery was abolished or was being abolished. But there was tremendous dispute between northerners and southerners over exactly what sort of “rights” the fugitive slave clause created, who should enforce them, and how they should be enforced.

The three-fifths clause was no less proslavery, and its consequences were substantial. If it is not entirely clear whether one or two slaveholders were elected president by virtue of the South’s increased influence in the Electoral College, there is little doubt that the three-fifths clause gave the slave states enough extra votes in the House of Representatives to alter the outcome of the Missouri Crisis and to secure the passage of the Indian Removal Act, the Fugitive Slave Act of 1850, and the Kansas-Nebraska Act of 1854. Here was the proslavery Constitution, and it mattered. To be sure, these proslavery victories always required the votes of a minority of northern senators and representatives. If it was never sufficient to sustain the federal power of the slaveholders, the three-fifths clause was always necessary.

But there was also an antislavery Constitution and it, too, mattered. Congress was granted the power to make “all needful rules and regulations” for the territories, and for decades after ratification hardly anyone doubted that this authorized the federal government to ban slavery from the territories. Excise that right from the text and it’s hard to imagine the restrictions on slavery in the Northwest Territory and the bulk of the Louisiana Purchase, the protracted debate over the so-called Wilmot Proviso that would ban slavery from the Mexican cession, or the violent response to the Kansas-Nebraska Act. In fact, without the territorial clause it’s hard to imagine the Republican Party. Similarly, the exclusive legislation clause gave Congress the power to abolish slavery and the slave trade in Washington, DC. That constitutional power was another source of contention between slave states and free states.

Then there was the familiar assertion that the principle of fundamental human equality was embodied in the Constitution. The text itself proved the point—or so slavery’s opponents believed. Doesn’t the Preamble state that the purpose of the federal government was to “secure the blessings of liberty,” and wasn’t liberty one of those natural rights to which everyone was equally entitled? Similarly, the Fifth Amendment declares that “no person” could be deprived of life, liberty, or property without due process of law. How is that different from saying that “all men” are equally entitled to “Life, Liberty and the pursuit of Happiness”? At the very least it was a plausible inference, based on the text, that the principle of fundamental human equality was “embodied” in the Constitution.

As with the territorial clause, it’s hard to imagine antislavery politics without the due process clause. The fact that the fugitive slave clause was located in Article IV implied that the states could require due process rights for accused fugitives, which the northern states immediately proceeded to do—to the consternation of the slave states. By the 1830s opponents of slavery increasingly invoked the Fifth Amendment to claim that accused fugitive slaves were entitled to their day in court. By the 1850s it was a commonplace of antislavery politics that Congress would actually violate the Fifth Amendment if it so much as allowed slavery into the territories.

Taken together these various clauses added up to the antislavery Constitution, based on the text, and hardly the figment of the antislavery imagination. Long before the Civil War, antislavery constitutionalism was the conventional wisdom among millions of northerners, not to mention a majority of the northern representatives in Congress.

And yet when the Constitution was ratified there was no such thing as proslavery or antislavery constitutionalism. Both developed over time, and by 1820 the two competing interpretations of the Constitution were substantially elaborated during the protracted debates over the admission of Missouri to statehood. It is a mistake, then, to think of the proslavery Constitution as original and the antislavery Constitution as a latter-day invention. The two Constitutions emerged in reaction to each other, and they continued to develop through the last decades of the antebellum era, each side solemnly invoking the text produced by the founders.

But the text will take us only so far. Throughout the decades-long debate over slavery and the Constitution some of the most contentious issues arose over constitutional principles that cannot be found in the actual wording of the Constitution. Nowhere does the Constitution state that Congress cannot “interfere” with slavery or abolition in a state, yet it was widely agreed that it could not. Nor does the Constitution expressly recognize a right of “property in man,” notwithstanding the later assertion by Justice Taney that it does. These two particular absences profoundly shaped the debates over slavery and the Constitution, despite the fact that they refer to principles that are nowhere to be found in the text.

Given that the Constitution was the handiwork of men who disagreed about slavery, it is hardly surprising that it could be—and was—read as both proslavery and antislavery. Even today scholars disagree over whether the compromises of 1787 produced a Constitution that was fundamentally proslavery.5 My own view is that, depending on which clauses you cite and how you spin them, the Constitution can be read as either proslavery or antislavery. And yet scholarly debates over slavery in the Constitution tend toward the tendentious. It has been argued, for example, that antislavery constitutionalists underestimated the significance of the Constitution’s proslavery clauses, that they saw ambiguity where there was really no ambiguity to be found. William Lloyd Garrison and John C. Calhoun were right after all: There was a single “original meaning”—clearly, powerfully proslavery—embedded in the text of the Constitution itself. If so, the defenders of freedom, however well-intentioned, were sadly mistaken to indulge the illusion that the Constitution was an antislavery document.

But antislavery constitutionalists replied that their opponents went beyond tendentiousness, that proslavery constitutionalists flat out made things up. They read an “express” right of “property in man” into a Constitution that contained no such right. They made the preposterous claim that the Declaration of Independence proclaimed the equality of states rather than people. They claimed, implausibly, that Congress had no constitutional authority to abolish slavery in Washington, DC, or to ban slavery from the territories. They claimed, on no textual basis whatsoever, that slavery followed the Constitution onto the high seas, into the territories, and even into the free states of the North. Were they right?

Once upon a time a firm yes or no answer would have come easily to me, but I now think it’s a mistake to dismiss antislavery constitutionalism too readily. No doubt there was a proslavery Constitution and an antislavery Constitution; both were grounded in the text, in inferences drawn from the text, in legal premises and racial ideologies beyond the text, and in the diverse intentions of the founders who wrote it. But the antislavery reading now strikes me as more compelling—and the proslavery reading less persuasive—than I once believed.

Clouding the issue is the fact that the question between them was not simply Who got the Constitution right? but who had the power to enforce one version of the Constitution over the other. In the early years of the republic the slave states enjoyed the disproportionate political power that flowed from having the largest populations and the richest economies. But as the decades passed, the northern economy proved more dynamic; its growing cities, its burgeoning factories, and its prosperous farms attracted millions of immigrant workers, and by the 1850s the balance of political power was noticeably shifting from the slave South to the free states. In a counterpoint familiar to all historians of the sectional crisis, antislavery constitutionalists became increasingly aggressive as proslavery constitutionalists made increasingly extreme demands for federal protection of slavery.

LIKE INTERPRETATIONS OF the Constitution, Lincoln’s popular reputation tends toward the tendentious. He was either the Great Emancipator, a secular saint, the man who freed millions of slaves with the stroke of his pen. Or he was a reluctant emancipator, an instinctive conservative whose willingness to attack slavery was held in check by his inability to imagine that Black people, once freed, could live as equals among white Americans. Both versions of Lincoln assume he had enormous powers that he simply did not have. He did not free all the slaves with the stroke of his pen because he could not. The idea that he could may be a function of the times we live in. After a succession of “imperial” presidents, it is sometimes hard to remember that Lincoln lived in a world where the Constitution limited at least as much as it empowered.

Here I propose a third Lincoln, one whose commitment to the federal consensus, far more than white supremacy, accounts for his deliberate approach to emancipation and abolition. For antislavery constitutionalism was in many ways a doctrine of restraint. Abolitionists repeatedly claimed that the federal government had stepped beyond its constitutional authority—when it admitted Florida and Arkansas to the Union as slave states, legalized slavery in Washington, DC, authorized fugitive slave renditions without due process, deployed US troops to assist slaveholders in the recapture of fugitive slaves, or demanded the return of slaves who rebelled on the high seas. When antislavery radicals called on the federal government to “divorce” itself from slavery or insisted on a “strict construction” of the fugitive slave clause, they did so on the ground that the Constitution should have restrained the government from pursuing a host of proslavery policies. But the opponents of slavery were likewise constrained by the federal consensus. Whatever else the federal government could do, the one thing nearly everyone agreed it could not do was abolish slavery in a state.

However, constitutional restraint did not mean constitutional impotence. Quite the contrary. At the very least the antislavery Constitution empowered the federal government to abolish the Atlantic slave trade, ban slavery from the territories, abolish slavery in Washington, DC, protect the due process rights of fugitive slaves, deny admission to new slave states, and emancipate slaves in wartime. By some lights the Constitution authorized the federal government to suppress the domestic slave trade, or at least the coastwise slave trade, and acknowledge the rights of slave rebels on the high seas. In the context of civil war, antislavery constitutionalism provided the legal basis for the single most revolutionary moment in the political history of the United States: the liberation of four million enslaved Americans.

It is therefore crucial to understand how, over the course of his career, Abraham Lincoln came to endorse the same basic principles of antislavery constitutionalism embraced by most abolitionists. He denied that the Constitution protected slavery as a right of property. He claimed that all slaves brought into the territories were presumptively free. Slaves who stepped beyond the borders of a slave state were thereby entitled to the rights of due process, the privileges and immunities of citizens, and the right against arbitrary seizure. In 1860 the platform on which Lincoln was elected president went far beyond claiming that Congress should ban slavery in the territories; it denied that Congress could constitutionally allow a territorial legislature to legalize slavery. That same platform rehearsed the most vital precept of antislavery constitutionalism—that the egalitarian principles of the Declaration of Independence were “embodied” in the US Constitution. For Lincoln, who repeatedly claimed that the promise of fundamental human equality was flatly incompatible with slavery, the conclusion was inescapable: Despite a couple of carefully delimited rights guaranteed to the slaveholders, the Constitution itself was an antislavery document. In the phraseology of his day, the Constitution made freedom the rule and slavery the exception.

Having adopted the major precepts of antislavery constitutionalism, it is hardly surprising that Lincoln would also embrace the various policies specified in the Antislavery Project—a project first enunciated by abolitionists in the 1820s and 1830s. As a young member of the Illinois state legislature Lincoln issued a public statement declaring that Congress could, “under the Constitution,” abolish slavery in Washington, DC, and a decade later he drafted legislation for Congress to do so. In the 1840s, as a member of the US House of Representatives, Lincoln voted repeatedly to ban slavery from all the western territories. In the 1850s he called for revisions of the Fugitive Slave Act that would guarantee due process to those accused of running away and demanded more aggressive suppression of slavery on the high seas. By the end of the decade, with threats of secession swirling about, Lincoln warned that if the slave states seceded they would forfeit their constitutional right to recapture their fugitive slaves, a warning he repeated in his inaugural address.

Lincoln made good on that last threat within weeks of the outbreak of war by endorsing the action of US Army generals who refused to return “contraband” slaves to their masters. In August of 1861, after Congress authorized the permanent forfeiture of contrabands, Lincoln acted on his constitutional powers as commander in chief to emancipate contrabands on the grounds of “military necessity.”

The threat of the Antislavery Project was significant enough to cause the slave states to secede, hurling the nation into a bloody civil war. But precisely because there was a war there’s no way to know whether the project would have worked in peacetime. It is, however, reasonably certain that the Civil War would not have led to the destruction of slavery in the absence of the antislavery Constitution. One of the many continuities between antislavery constitutional theory and wartime practice lies in Lincoln’s approach to fugitive slaves. It’s not hard to see the connection between the constitutional claim that slaves were presumed free when they set foot on free soil and the Union policy of freeing slaves who set foot within Union lines where the Constitution overrode state and local laws establishing slavery. For enslaved men and women, federal policy vested the often-solitary act of running away with tremendous political significance. After Fort Sumter, the constitutional precepts of peacetime became the revolutionary weapons of wartime.

As president Lincoln made it his administration’s policy not to return the fugitives of disloyal owners within weeks after the Civil War began. A few months later he declared “contraband” slaves emancipated. Three months after that he drafted an abolition statute that was a model for the four slave states that remained in the Union. From those beginnings his antislavery policy became steadily more radical. In the first half of 1862 he signed off on a raft of congressional bills that implemented the Antislavery Project. Those laws made it a crime for anyone in the US military to participate in the capture and return of fugitive slaves, abolished slavery in Washington, DC, required West Virginia to abolish slavery as a condition for admission to the Union, and banned slavery from the western territories. In his first year as president Lincoln negotiated the treaty with Great Britain that led, within a few years, to the end of the 350-year-old Atlantic slave trade.

As the crisis moved into its second year federal antislavery policy became more and more aggressive until, with the Emancipation Proclamation, war became revolution. In the early months of 1862 Lincoln began to warn the loyal states that emancipation would soon lead to abolition. His famous proclamation of January 1, 1863, declared emancipation universal in all the disloyal parts of the South, and in the middle of that year Lincoln began using emancipation to weaken slavery in all the southern states until, one by one, they began to abolish slavery on their own. This was the original goal of the abolitionists—federal encouragement of state abolition—now radicalized by war. So much so that by January 1865 there were enough free states to make ratification of the Thirteenth Amendment possible. Had they not done so, it is doubtful the Thirteenth Amendment abolishing slavery nationwide could have succeeded.

THERE ARE THOUSANDS of books about Abraham Lincoln and dozens of them on the sixteenth president’s supposedly conservative commitment to, or scandalous violations of, the Constitution. But only a few place his antislavery politics within the context of his antislavery constitutionalism, largely because we lack a comprehensive history of the antislavery Constitution to which Lincoln was devoted. As I began digging into that history my own thinking evolved. Where I once contrasted Lincoln the pragmatic politician with Frederick Douglass the principled abolitionist, it now seems to me that by 1860 their views of the Constitution, though different, nevertheless had more in common than I once thought. I now suspect that Lincoln’s evolving views on racial equality were closely tied to his deepening commitment to antislavery constitutionalism. The continuities I once vaguely discerned between the antislavery politics of the pre—Civil War decades and the wartime destruction of slavery come into sharper focus when viewed through the lens of antislavery constitutionalism. Through that same lens—the antislavery Constitution—Lincoln’s commitment to the Union and his hostility to slavery become indistinguishable. Slave resistance has long been central to my thinking about the Civil War era, but only in recent years has it become clear to me that an antislavery Constitution created openings for fugitive slaves that a proslavery Constitution would have foreclosed. In short, I have become convinced that a full understanding of antislavery constitutionalism is necessary for a full understanding of the origins of the single most important achievement of Abraham Lincoln’s presidency: the restoration of the Union by means of the revolutionary overthrow of the largest and wealthiest slave society on earth.

But it was a crooked path that led to abolition, with forks and byways that could easily have led to dead ends, or to a very different end. If the outcome was hardly inevitable, however, neither was it accidental. The revolution happened in the same space all humans occupy, that vast netherworld between determinism and free will, between “structure” and “contingency,” the place where people make their own history but not on their own terms. Lincoln entered the presidency having sworn to uphold the Constitution and restore the Union, but not just any Constitution and not just any Union. With each new twist of fate, with every unexpected turn of events—the military setbacks, the political challenges, the diplomatic scares—Lincoln responded in ways consistent with his long-standing commitment to an antislavery Constitution and the more perfect Union—the antislavery Union—he believed the founders intended to establish. As war became revolution, ultimate extinction became unconditional abolition, a “fundamental and astounding” turn of events, Lincoln mused, but a turn that had its origins in his determination—and the determination of hundreds of thousands—to restore a Union founded on the great principle of fundamental human equality. If he had to do it any other way, he said, he would rather be assassinated.

James Oakes is one of our foremost Civil War historians and a two-time winner of the Lincoln Prize for his works on the politics of abolition. He teaches at the Graduate Center of the City University of New York. Click here to order your copy 

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