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The Antislavery Constitution

With muscles popping out of his shirt at age 70, James Oakes is an academic who doesn’t shrink from a political fight. During his February 12th Athenaeum visit, the acclaimed historian of emancipation argued for a new framework for understanding Lincoln’s approach to ending slavery — antislavery Constitutionalism.

Lincoln is often cast in extreme ways: idolized as a quasi-divine emancipator, or criticized as a hesitant, racist acquiescer. But Lincoln’s approach to ending slavery was not driven by the sweeping gestures of myth. Rather, it was dictated by a pragmatic engagement with the legal and moral compromises made at the Constitutional Convention that formed the Union. 

As a shrewd politician and President, Lincoln focused more on the goals of stopping the spread of slavery while holding the Union together than on ending the moral evil of slavery outright.  His vision was that halting slavery's expansion to the Western territories would gradually erode its economic and political foundation.

The original Constitution was a compromise with slavery, as is apparent in the clauses that obliquely refer to the institution without naming it. The Three-Fifths Clause put pro-slavery Southerners in a position to dominate the national government through the early decades of the 19th Century. As Alexander Hamilton argued at the New York ratifying convention, against the critics of the three-fifths compromise: without it “no union could possibly have been formed.” 

Beyond the Three-Fifths Clause and other explicit provisions, the Constitution depended on  a “federal consensus” that prevented Congress from abolishing slavery in states where it already existed. An example is the Missouri Compromise of 1820, which struck a balance between free and slave states. Lincoln understood this “federal consensus” as essential to holding the nation together. 

Yet even if the founders left a Constitution that represented a compromise with slavery, they also left a Constitution with numerous provisions entirely at odds with the practice. During the antebellum decades, as slavery’s defenders ratcheted up their claims that slaveholding was a constitutionally protected property right, abolitionists and their political allies drew out the antislavery implications of the founding documents. While Southern enslavers emphasized their right to recapture fugitives who escaped to the North, abolitionists emphasized states’ authority to require due process in renditions to protect free Black citizens. 

Some influential radical abolitionists like William Lloyd Garrison understandably weren’t as hellbent on holding the Union together or defending the Constitution. Garrison concluded that the Constitution was a “covenant with death” and “an agreement with hell.” Ironically, Garrison’s reading of the Constitution as a pro-slavery document matched the interpretation of fervent slavery advocates, like Senator John C. Calhoun, Chief Justice Justice Roger B. Taney, and Jefferson Davis, to name a few. This pro-slavery reading of the Constitution has reemerged in contemporary debates in novel ways. Oakes sees The New York Times’ 1619 Project, which re-popularized the argument that the Constitution—and the founding  itself—were explicitly and irredeemably pro-slavery, as erasing these countervailing anti-slavery interpretations. It was this interpretive tradition, taken up by abolitionists and eventually by Republicans like Abraham Lincoln, that actually challenged the views and entrenched political might of the Southern “slave power.” In fact, Oakes argues that this Constitutional reading drove Southern fears of Lincoln that culminated in secession — the decision that catalyzed the end of Slavery. 

Abolitionist Lysander Spooner, for example, insisted that the Constitution, by avoiding the use of the word slavery, provided no constitutional sanction to the practice. Frederick Douglass even argued that the Constitution was a “glorious freedom document.” In a speech before the Anti-Slavery Society in Glasgow, Douglass echoed Spooner’s point that the terms “slave” and “slavery” were absent from the document, offering instead a pro-liberty reading. The Fifth Amendment, for instance, states that no person shall be deprived of life, liberty, or property without due process of law. Black Americans, even if not yet recognized as citizens, were undeniably persons. Abolitionists and Northern politicians found in the Fifth Amendment and other parts of the Constitution a potent weapon to stymie enforcement of the Fugitive Slave Acts. 

Other abolitionists contended that Congress held the exclusive constitutional authority to ban slavery in the Western territories and was morally bound to exercise it. Furthermore, they believed that Congress had the power to end the domestic slave trade and eliminate slavery within the District of Columbia. As support for this contention, they highlighted the Constitution's preamble giving the federal government the power to “secure the blessings of liberty” and pointed to the Fourth Amendment's protection from unwarranted seizures. 

The Northern critics of slavery were persistent, They maintained that the rights and freedoms guaranteed to citizens, as stated in Article IV, Section 2, stemmed directly from the federal Constitution, not the individual state constitutions. This meant that Black citizens from the North had the constitutionally-protected right to move across state lines. They utilized the constitutional assurance of republican government in every state, delineated in Article IV, Section 4, as a lever to challenge the legitimacy of slavery within the Southern states. And they warned that should the slave states decide to leave the Union, they would abandon their constitutional protections, thereby absolving states opposed to slavery from the responsibility of enforcing the law regarding fugitive slaves.

​​Within these constitutional boundaries, Lincoln pursued, before and during the Civil War, the goal of abolition by individual states. He intended pressure from the federal government to move the Southern states to enact their own gradual emancipation policies, as individual Northern states had done following the American Revolution. Lincoln’s debates with Stephen Douglas and his public addresses reveal a moral leader wrestling with the nation's founding contradictions, seeking to reconcile the promise of equality and liberty enshrined in the Declaration of Independence with the Constitution’s accommodations of slavery. Southern slaveholders harbored such deep fears of the Republicans and Lincoln that his victory in the Election of 1860 triggered the immediate secession of several slave states. Even before Lincoln was inaugurated in March 1861, seven states had already established the Confederacy, with four additional states joining them between April and June. 

The newly-formed Republican Party was the political embodiment of this antislavery constitutionalism, with Lincoln as its figurehead. Secession was not a hysterical overreaction to a nonexistent threat: Republicans meant to challenge slavery and posed a serious threat to it. In the 1830s, long before the Civil War erupted, President John Quincy Adams was asserting the emancipatory force of the Constitution’s War Powers clause should the federal government be called on to repel a foreign invasion or suppress a domestic insurrection. Oakes argues that by the time the Civil War began, Adams’ reading had been widely accepted by antislavery politicians across the North. In other words, they believed that secession released Lincoln from having to uphold the “federal consensus.”

Soon after hostilities commenced, Lincoln and the Republicans began using the powers afforded by wartime to undermine the Confederacy's main support system and accelerate the end of slavery. While Noah Feldman of Harvard Law School argued at the Athenaeum last year that Lincoln had to ‘break’ the Constitution’s “federal consensus” during the Civil War in order to grant emancipation and remake the document, Oakes strongly disagrees — he suggests that Lincoln effectively utilized two fundamental aspects of anti-slavery Constitutionalism: the idea that the states in rebellion had lost their entitlement to constitutional protections and the provision that allowed the federal government to suppress uprisings within states, which also implied the authority to free slaves in the process. 

To Oakes, the connection between the rise of anti-slavery constitutionalism and the outbreak of the Civil War is undeniable. In this sense, the pro-slavery fears were well-founded. Lincoln and the Republicans were coming back at them not just with the power of arms, but with the power of Constitutional ideas. 


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