The Crooked Path to Abolition: Abraham Lincoln and the Antislavery Constitution

by James Oakes

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.

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.

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.

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.

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.

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.

IN 1860 Abraham Lincoln ran for president on a Republican Party platform that proved Hale’s point by repeatedly invoking a Constitution that favored freedom over slavery. It proclaimed freedom to be the “normal condition of all the territory of the United States.” The Republicans did not directly call on Congress to pass a law banning slavery from the territories. What they actually said was that Congress had no authority “to give legal existence to slavery in any territory of the United States.” It wasn’t that Congress lacked the power to ban slavery, it was that Congress had no constitutional power to allow slavery into the territories. Natural law decreed that all human beings were born free, and the Constitution affirmed that principle. Its Preamble secured “the promise of liberty to ourselves and our posterity.” The Fifth Amendment decreed that no person could be deprived of liberty without due process of law. Congress could, if need be, pass laws protecting the freedoms of all those residing in the territories, but it could not pass a law establishing slavery nor could it allow a territorial legislature to do so. So freedom was more than the normal condition of the territories, it was the constitutionally protected condition of the territories. That’s because the Constitution—the Constitution as Lincoln and the Republicans understood it—was an antislavery document. To be sure, the founders had made compromises with slavery in order to create the Union, but those pros...

Oakes’ thesis

It is impossible to appreciate the serious implications of Lincoln’s election in 1860 without understanding that the Republican Party platform on which he ran represented a potent distillation of an antislavery constitutional tradition that originated in the famous compromises between slavery and freedom that were hammered out at the Constitutional Convention at Philadelphia in 1787.

Such questions arose in large part because the text of the Constitution always referred to slaves as “persons,” never as property.

Slavery was the only domestic institution the Constitution protected, albeit indirectly, by means of the three-fifths and fugitive slave clauses, and the only institution the federal government was empowered to move against, also indirectly, by banning slavery from the territories and shutting down the Atlantic slave trade. The federal consensus had similarly ambiguous implications. Proslavery southerners claimed—and antislavery northerners agreed—that the federal government could not constitutionally “interfere” with slavery in their states. But by the 1840s political abolitionists were drawing the additional inference that if the federal government could not interfere, neither could it protect slavery.

This reasoning opened the door to a series of northern statutes emancipating any slaves whose masters traveled with them into a free state.33 These “sojourn” laws, as they are known, were based on the assumption that the Constitution guaranteed masters a right of recaption for fugitive slaves only, whereas northern state laws—like the Constitution itself—presumed that anyone setting foot on free soil was free.

More importantly, antislavery constitutionalists insisted that the fugitive slave clause could not be enforced in disregard of the Fifth Amendment guarantee of due process. For this reason many of them viewed the two major fugitive slave laws passed by Congress in 1793 and 1850 as unconstitutional. In the decade before the Civil War some Republicans advocated open violations of the Fugitive Slave Act while others, notably Abraham Lincoln, called for obedience to the law so long as it remained on the books.34 Virtually all antislavery politicians, including Lincoln, called for the repeal or revision of the 1850 law.

it was taken for granted that Congress could ban slavery from the territories, a power the slaveholders themselves had acknowledged. But in 1819, for the first time, slaveholders in Congress began to deny that the federal government had the power to impose such a ban. They based this claim on the argument that the fugitive slave clause of the Constitution guaranteed a general right of “property in man.”

Freedom, not slavery, followed the Constitution, and any slaves carried into US territory could sue for their liberty under a writ of habeas corpus. It was no longer enough to say that Congress should ban slavery from the territories. If freedom followed the Constitution, Congress had no authority to allow slavery into the territories.

Most of what Lincoln had to say about slavery and the Constitution was packed into the six years between the Peoria address in late 1854 and his first inaugural address in early 1861. But in those years Lincoln proved an eloquent, if unoriginal, advocate for the antislavery constitutional tradition. He repeatedly insisted that the Constitution recognized slaves only as persons, never as property. He vowed to abide by the federal consensus by not interfering directly with slavery in the states where it existed, but he denounced the tendency to spread proslavery constitutional principles into the free states. He always said that the guiding spirit of the Constitution was the principle of fundamental human equality proclaimed in the Declaration of Independence. The antislavery Constitution shaped his antislavery politics. Lincoln believed that Congress could, “under the Constitution,” abolish slavery in Washington, DC, that the federal government could ban slavery from all US territories, and that accused fugitive slaves were entitled to the “privileges and immunities” of citizenship, in particular the rights of due process.

Abolition would never come about if it relied solely on the voluntary acts of individual slaveholders. They had to be forced into emancipating their slaves by government policies that made slavery economically unsustainable.

It is doubtful that Lincoln believed such a peaceful, gradual abolition was possible. “[T]here is no peaceful extinction of slavery in prospect for us,” Lincoln concluded in 1855.73

The “common ground” of the Republican Party, its broad appeal, consisted of two distinct elements. It pared the Antislavery Project down to its single most important policy—a ban on slavery in the territories—thus appealing to the broadest coalition of voters. But it embedded that one policy in a robust antislavery constitutionalism, thereby appealing to the more radical base of the party. Throughout the 1850s Lincoln never really deviated from his personal support for most of the policies of the larger Antislavery Project: abolition of slavery in Washington, DC, the suppression of slavery on the high seas, and a revision of the Fugitive Slave Act to secure the privileges and immunities of citizenship for accused runaways. But to endorse those policies in the Republican Party platform was to risk alienating some of the very groups Republicans needed to attract.

No constitutional right of property in man. Due process for fugitive slaves. The privileges and immunities of citizens for all Blacks in the territories. A Constitution that protects freedom rather than slavery wherever the US government was sovereign. It’s no wonder the slave states began to secede from the Union as soon as Lincoln was elected. It was not simply his party’s promise to keep slavery out of the territories. Far more frightening to the slaveholders was the increasingly aggressive antislavery constitutionalism, openly and unabashedly proclaimed by Lincoln and his fellow Republicans.

When it came to the natural rights of life, liberty, and the pursuit of happiness, Lincoln was at bottom a racial egalitarian. When it came to the privileges and immunities of citizenship, Lincoln was somewhat less consistent.

Lincoln thought a great deal about slavery as a moral, social, and political evil, but he thought very little about race.

Lincoln’s support for colonization probably had less to do with racism than with racial pessimism.

It is important to appreciate these two precepts of the antislavery Constitution—the forfeiture-of-rights and the war powers—if we are to make sense of Lincoln’s approach to slavery in the first half of the war.5

Adams imagined that these war powers would be triggered if the southern states asked for federal assistance to suppress a slave rebellion or repel a foreign invasion. With that, the war powers clause joined the Preamble, the Fourth and Fifth amendments, and the privileges and immunities clause as one of the mainstays of antislavery constitutionalism.

Beginning in the late eighteenth century, a vast cotton kingdom arose, transforming the old South into the largest and wealthiest slave society on earth—maybe the largest in human history. Between 1789 and 1850 nine slave states and eight free states were admitted to the Union. The Mexican-American War ended with the acquisition of an immense southwestern territory that could potentially add several more slave states to the nation.

In 1776, when the American colonies declared their independence, the new nation included thirteen slave states and no free states. By 1850 things had changed dramatically. The number of slave states had increased slightly, from thirteen to fifteen, whereas the number of free states had leaped from zero to the same number, fifteen. This was the “equilibrium” to which John C. Calhoun referred in his famous last speech to the Senate on March 4, 1850. The dying South Carolinian proposed a series of constitutional amendments that would permanently equalize the power of the slave and free states in the federal government.

Historians sometimes tell us that the destruction of slavery was the incidental by-product of the war, that the war “changed everything.” It would be more accurate to say that slavery was abolished because the Civil War radically accelerated the decades-long shift in the balance of power between slave and free states.

Lincoln’s sustained effort to get states to abolish slavery, after the Emancipation Proclamation had been issued, remains one of the least-understood features of his presidency.

A common criticism of the proclamation is that it exempted the loyal slave states—the very states where the US government was in a position to enforce its will. But the loyal slave states were not exempt from the provision opening the Union army to the enlistment of Black soldiers. On the contrary, in 1863 the War Department began aggressively recruiting slaves in Tennessee, Kentucky, Maryland, and Missouri—states supposedly exempt from the proclamation. Moreover, the government promised slave recruits freedom in return for military service, a promise that affected only the Border States.

The thirteen slave states of 1776 had become, by 1860, eighteen free and fifteen slave states. During the Civil War Republicans admitted three new free states to the Union—Kansas, West Virginia, and Nevada. More important, however, was the revolutionary impact that universal military emancipation and Black enlistment had on Lincoln’s sustained campaign for state-by-state abolition. In the last year of the war, six slave states—Arkansas, Virginia, Maryland, Missouri, Louisiana, and Tennessee—abolished slavery on their own—though under enormous pressure from the federal government to do so.

By the end of January 1865, at the moment Congress sent the Thirteenth Amendment out for ratification, the 1860 ratio of eighteen free states to fifteen slave states was long gone. By the US government’s accounting there were now twenty-seven free states and nine slave states, the three-quarters proportion necessary for ratification.